Interchangeable Terms: Delegated, Secondary, Subordinate etc.
Types of Delegated Legislation:
Statutory Instruments:
Orders in Council
Regulations
Rules and Orders
Statutory instruments cannot be amended, only repealed.
Definition:
Where ‘power to make, confirm or approve orders, rules, regulations or other subordinate legislation is conferred on His Majesty in Council or on any Minister of the Crown’. [1]
‘Subordinate legislation’ means Orders in Council, orders, rules, regulation, schemes, warrants or byelaws and any other instrument made or to be made under any Act.’ [2]
Scottish Statutory Instruments:
Since 1999, Scottish Statutory Instruments under authority of Acts of the Scottish Parliament.
Statutory Rules of NI:
Statutory Rules of NI are orders, Regulations and Rules enacted under authority of Acts of the Northern Irish Parliament, Acts of the UK Parliament or Orders in Council.
Church Instruments:
‘Archbishops Instruments’ bring Church Measures into force under authority of either the Archbishop of York or Canterbury.
Bylaws:
Legislation can be delegated to public bodies through bylaws.
EG: local authorities, transport system providers, public utilities etc.
Authorising Delegation:
The government can only make law if it is authorised to do so by Parliament. [3]
Unlike many other countries, in the UK, the executive has no inherent powers to issue ordinances or decrees. [4] Therefore, an Act of Parliament is required to pass legislative powers to the executive.
Where the power has been delegated, ministers can make, confirm or approve the legislation according to the Act. They do this by signing a Statutory Instrument. There is a requirement that ministers know or are told enough necessary information about the Statutory Instrument before they sign, but they do not have to know everything. [5]
Unlike with primary legislation, the courts have the power to apply judicial review and quash delegated legislation where required. [6]
‘Henry VIII’ Clauses:
These clauses are named after the fact that Henry VIII was given the power to legislate by proclamation. [7] They are provisions within a bill that enables the government to repeal or amend it after it has become an Act of Parliament.
These clauses essentially allow the amendment of primary legislation using delegated legislation. They are controversial as it is seen to give too much power away from Parliament.
A ‘constitutional oddity’ as they push the boundaries of the constitutional principle that only Parliament can amend or repeal primary legislation. [8]
‘a departure from constitutional principle’. [9]
Advantages and Disadvantages of Delegated Legislation:
Advantages:
It would be impractical to make Parliament vote on every issue, especially trivial ones. [10]
Delegating power to the executive allows the state to run efficiently.
Delegating power allows the law to stay up to date with current social norms quicker. [11]
Delegated legislation is more flexible. [12]
Therefore, it is quicker to implement change.
EG: COVID regulations.
Government departments have technical expertise, so it makes sense to give the power to them. [13]
Delegated legislation does not completely pass Parliament’s powers to the government.
Since the power is conferred by an Act, it can also be repealed by Parliament at a later date.
Allows the Act (or sections of it) to be brought into force at a later, more convenient date. [14] In these cases, the minister has the power to bring the act into force, but not a duty to do so.
This creates a tension between parliamentary sovereignty and executive discretion.
There is a continuing obligation that they consider whether it should come into force, so they cannot say that they will never bring the act into force. [15]
Delegating large amounts of legislation makes bills clear, simple and short makes them easier to follow for MPs.
Parliament can focus on debating the essential points of policy and principle rather than fine details. [16]
Disadvantages:
Delegated legislation receives little substantial Parliamentary scrutiny.
A lack of democratic scrutiny in delegated legislation weakens the primary legislation that enables it. [17]
Increases potential for abuse of power within the government.
Potentially undermines the doctrine of parliamentary sovereignty.
Harder to understand for the layperson.
The law is buried within thousands of pages of Statutory Instruments and are therefore uncertain and confusing. [18]
The Role of Parliament and Scrutiny Committees in Considering the Delegated Powers Proposed by a Bill:
Compared to bills, delegated legislation receives far less scrutiny and is not amendable.
Enactment Procedures:
No Parliamentary Scrutiny Procedure:
Commencement Orders
Negative Resolution Procedure:
Statutory Instruments brought into effect immediately if they are subject to the negative resolution procedure.
Brought before Parliament and may be annulled within 40 days. Oftentimes, when an MP requests debate on this type of Statutory Instrument, it is often not timetabled in as there is little time to discuss it; if the opposition request debate, it may be timetabled in. [19]
This is the usual way Statutory Instruments are brought into force. Therefore, many SI’s are not subject to substantial Parliamentary scrutiny.
Affirmative Resolution Procedure:
Statutory Instruments not immediately brought into effect. Firstly, they are laid before Parliament and is not law until it gains their approval.
The instrument is brought before Parliament and may be brought into law within 40 days.
Super-affirmative Instruments:
Under the Regulatory Reform Act 2001, certain Statutory Instruments are subject to consultation from committees before they become law.
Committees:
Joint Committee on Statutory Instruments:
The committee reviews Statutory Instruments that concern charges on public revenue, excludes judicial review, retrospective / defective drafting, unjustifiable delay, unclear form or meaning and any other ground not relating to policy or merits.
House of Lords Delegated Powers Scrutiny Committee:
The committee was established in 1992 to review the extent to which legislative powers are delegated. They examine all bills with delegated powers.
Allows Statutory Instruments to be made before they pass through the House of Lords.
House of Lords Secondary Legislation Scrutiny Committee:
Established in 2003 in response to concern that Statutory Instruments were insufficiently attended to.
The committee examines instruments that are politically or legally important, give rise to public policy, inappropriate in view of changed circumstances, incorrectly implementing EU law or imperfectly achieving policy objectives.
‘Sifting Mechanism’ Recommendations:
The House of Commons and House of Lords committees recommend when Statutory Instruments are to be upgraded to affirmative procedures. This would give Parliament a more active scrutiny role.
Controversies:
Tax Credit Cuts (2015):
The government attempted to use delegated powers to update rates and bands under Tax Credits Act 2002. As the Statutory Instruments was an affirmative instrument, the House of Lords could exercise a veto over the delegated legislation due to likely impact of the changes.
Strathclyde Review (2015):
The government asked Lord Strathclyde how the government can ‘secure their business in Parliament’.
Options Given:
Remove the House of Lords from the Statutory Instrument procedure.
The House of Lords retains its role, subject to clear restrictions on how power can be used.
Recommendation:
Create a new procedure that allows the House of Lords to ask the House of Commons to reconsider.
The House of Commons loses its veto, giving final say to the House of Commons.
Government Response:
Chose not to implement either recommendation but stated it may be in the future.
EU Withdrawal:
The EU (Withdrawal) Bill attempted to give ministers the power to choose what EU law would be retained, repealed or amended.
Due to an estimated 20,000 domestic laws being derived from EU law, the House of Lords Committee stated that this would give too much power from Parliament to the government, so is unacceptable. [20]
COVID:
Many COVID regulations were passed using Statutory Instruments. While this allowed the government to respond quickly to the pandemic, it left the general public confused about the current law.
The Coronavirus Act was passed through Parliament and enacted in less than a week. Many criticise how it was not properly scrutinised by Parliament.
References:
[1] Statutory Instruments Act 1946 s1 [2] Interpretation Act 1978 s21(1) [3] EC Page, Governing by Numbers (Oxford: Hart Publishing 2001) 20-1 [4] Bill of Rights 1689 [5] R (on the application of National Association of Health Stores) v Secretary of State for Health [2005] EWCA Civ 154 [6] Andrew P. Le Sueur, Jo Eric Murkens, and Maurice Sunkin, Public Law: Text, Cases and Materials (4th edn, Oxford University Press 2019) 414 [7] Statute of Proclamations 1539 [8] House of Lords Constitution Committee, Public Bodies Bill, Sixth Report, Session 2010–11 (HL Paper 51) [9] House of Lords Constitution Committee, The Legislative Process: The Delegation of Powers, 16th Report, Session 2017–19 (HL Paper 225) [10] Select Committee on Procedure (1966-67) [11] Select Committee on Procedure (1966-67) [12] Hansard Society Commission on the Legislative Process, Making the Law (1992) 64–5 [13] Select Committee on Procedure (1966-67) [14] See Childrens and Social Work Act 2017 s70 for example commencement provision. [15] R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513 [16] Hansard Society Commission on the Legislative Process, Making the Law (1992) 64–5 [17] R Baldwin, ‘Legislation, types of’, in P Cane and J Conaghan (eds) The New Oxford Companion to Law (Oxford University Press 2009) 721 [18] Hansard Society Commission on the Legislative Process, Making the Law (1992) 64–5 [19] House of Commons Information Office, Statutory Instruments, Factsheet L7 (2008) [20] House of Lords Constitution Committee, European Union (Withdrawal) Bill: interim report, 3rd report, Session 2017–19 (HL Paper 19), para. 47
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