Section 94 of the Children and Families Act 2014 allows the Secretary of State to impose, via Statutory Instrument, restrictions or limitations on the sale of tobacco products and on their packaging - including markings on the packaging, the flavour of the products, and any feature that could allow distinctions between different brands. In other words, the Act enables Ministers to ban certain flavours in tobacco products and require certain kinds of packaging, including by standardising different brands.

That Section 94 power has one limitation: the Secretary of State can make regulations under the power only if (s)he believes it will reduce the risk of harm to the health or welfare of people aged under 18.

The wording of Section 94 – that the Secretary of State “may” make regulations – means that the use of the power is optional: the Secretary of State is not required to use the power at all, or to use them in a particular way.

During the parliamentary passage of the 2014 Act the Government explicitly justified the provision as a ‘holding’ power. Ministers had not yet decided whether, or how, they would use the powers to regulate tobacco packaging: an independent review would first be carried out, and the powers were sought in the Bill in case that review recommended that the Government enact certain restrictions on tobacco packaging.

The Tobacco and Vapes Bill will abolish the Section 94 powers in the 2014 Act and re-enact a new suite of powers that cover not just tobacco products but vapes and nicotine products (and their packaging) more generally. In theory, the Secretary of State could use these powers to ban all flavours for vapes, to standardise all vape packaging, to require warnings on vape packages, and to ban certain ingredients from vape liquid.

The powers in this Bill, unlike the Section 94 provisions in the 2014 Act, are not subject to the overriding restriction that the Secretary of State believes the regulations would improve the health of under 18s. This reflects the changes to the smoking age. However, no replacement restriction – such as one requiring the Minister to believe the regulations would improve the health of people of any age – is included in its place.

The consequence of delegating these powers is that the policy detail for regulating vaping and nicotine products – and any further tobacco regulation – will be determined by Ministers, but the exercise of these powers will be subject to less control than has been the case over the course of the last decade.

This time the Government is not justifying the re-enacted tobacco powers in the Bill as ‘holding’ powers. They are justified on the grounds that they provide for a type of detailed regulation more appropriate for delegated legislation and mirror an existing power in primary legislation, namely the powers in the 2014 Act that the provisions in the Bill are re-enacting. Indeed, the Government cites the Standardised Packaging of Tobacco Products Regulations 2015, made under the powers in the 2014 Act, as evidence that the provisions are more appropriately left to delegated legislation.

Like the 2014 Act, the powers in this Bill are discretionary and need not be used to enact any particular set of regulations. But Parliament is being asked to approve the powers, without knowing whether ministers will use them to ban vape flavours, to require plain packaging, or to require warnings on vaping products, or whether in fact they may choose not to use them at all.

The Government clearly has the tobacco powers in mind as a justification for introducing these analogous new powers for vaping and other nicotine products, given that the latter provisions delegate precisely the same powers as the former. The supporting documentation provides another ‘holding’ power style justification for vaping and nicotine products, suggesting that the powers provide ‘time for further consultation to take place and an impact assessment to be prepared’.

The Government could, of course, have carried out a consultation and an impact assessment first, and subsequently enacted the provisions in this Bill so that Parliament could scrutinise the substantive policy detail during the primary legislation scrutiny process, allowing MPs and Peers to suggest amendments. But leveraging the examples of the Government’s previous legislative actions, it has opted not to do so. Instead, the detail to enact the policy will be left to delegated legislation – in the form of Statutory Instruments – for which the parliamentary scrutiny process is inadequate and does not permit amendment.

This brief history of the powers in this Bill usefully highlights the way in which delegated powers develop and expand over time. Governments will often cite existing delegated powers as a precedent for taking further powers (whilst conveniently forgetting any restrictions imposed on the exercise of the earlier iteration of the power!) The result is new, and slightly broader delegated powers, justified on the basis of existing delegated powers. And so, the gamut of ministerial power creeps ever forward.

As we approach a general election, which may result in a change in the governing party, in this as in other bills MPs would be wise to think about what might happen if the powers they grant are held by Ministers belonging to a party with a different political philosophy. All too often, when considering legislation, insufficient thought is given by MPs, particularly on the governing side, to the fact that once powers are granted in legislation, they may sit on the statute book for years, to be used by Ministers in future governments in ways that were not anticipated or intended by Ministers when the power was introduced.

England, M. (15 April 2024), Creeping Ministerial powers: the example of the Tobacco and Vapes Bill, (Hansard Society blog)