Delegated Legislation

Question 1

Forms of delegated legislation

Answer 1

Statutory instrument; Orders in Council; Local instruments e.g., road orders

Question 2

Why we need delegated legislation

Answer 2

Efficiency: stops clogging up of legislative machine
Technical matters: best regulated by relevant experts, professional bodies, etc.
Adaptability: not possible to foresee every issue; takes longer to enact primary legislation
Constitutional reasons: the Scottish Ministers have greater executive competences than Holyrood has legislative competences e.g., speed limits

Question 3

How does delegated legislation take effect?

Answer 3

Some require no Parliamentary scrutiny at all e.g., when closing a road
Negative resolution Procedure: SI is laid before Parliament and takes effect within a 40-day period unless Parliament takes steps to disapprove it. These are called ‘negative instruments’
Positive resolution Procedure: SI must be approved by Parliament within 40-days before taking effect. These are called ‘affirmative instruments’
‘Super-Affirmative’ Procedure: during a 60-day period, the SI will be scrutinised and subject to representations, a resolution of either house/report of a scrutiny committee or other requirements - not necessarily quicker than the primary legislative route

Question 4

Keeping the government accountable when producing delegated legislation - Parliamentary Control

Answer 4

Ministerial Responsibility: Ministers are subject to general principles of accountability and are answerable to Parliament
Discussion:
During the legislative process when the parent act is being passed, there will be debate on the extent of powers ministers will have to produce delegated legislation

Question 5

Henry VIII Powers

Answer 5

A power which ministers may be granted which authorise them to make delegated legislation which amend or repeal Acts of Parliament, for example

Question 6

Why are Henry VIII Powers necessary?

Answer 6

Martin v HM Advocate [2010] UKSC 10, per Lord Rodger at [72]:
“to be effective, legislation on a matter for which one department [has] responsibility might require that a piece of legislation falling within another department’s sphere of responsibility should be amended… perhaps involving little more than updating statutory references or bringing the language of existing legislation into conformity with the language of the proposed legislation.”

Question 7

Examples of Henry VIII Powers (1)

Answer 7

Legislative & Regulatory Reform Act 2006: Section 1 power to remove or reduce "burdens" 
Public Services (Scotland) Act 2010: Section 14 power to "improve" the exercise of public functions 
European Union (Withdrawal) Act 2018: Section 8(1) to remedy any 'deficiency in retained EU law'

Question 8

Examples of Henry VIII Powers (2)

Answer 8

Parliamentary control through Select Committees
These Select Committees are the Joint Committee on Statutory Instruments
ALSO
the HoL has 2 committees to supervise delegated legislation and these are (i) The Delegated Powers and Regulatory Reform Committee AND (ii) Secondary Legislation Scrutiny Committee
HoC has (i) Delegated Legislation Committees; (ii) Regulatory Reform Committee; (iii) Constitution Select Committee
ALSO
the SP has the ‘technical’ review of delegated legislation and the review of delegation in primary legislation. This is carried out by the Delegated Powers and Law Reform Committee

Question 9

Judicial Control through Judicial Review

Answer 9

Delegated Legislation can be reviewed by courts relying on the grounds of JR.
R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51

Question 10

What is the important case-law to be aware of in regards to JR of delegated legislation?

Answer 10

Hoffman-La Roche v Secretary of State for Trade [1975] AC 295: this case confirmed that delegated legislation is subject to JR. even if it was approved by Parliament
Quote per Lord Diplock at 365

ALSO
R v Sheer Metalcraft [1954] QB 586: this case told us that a failure to publish an SI does not necessarily invalidate the SI

FURTHERMORE
Statutory Instruments Act 1946, Sec. 3(2): a defence to prove that the instrument had not been issued by His Majesty’s Stationery Office at the date of the alleged contravention unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of the persons likely to be affected by it, or of the person charged

THERE IS ALSO THE FOLLOWING
Boddington v British Transport Police [1998] UKHL 13: this case told us that it is a fence for a defendant in criminal proceedings to content that subordinate legislation criminalising certain behaviour was ultra vires
DPP v Hutchinson [1990] 2 AC 783: this case explains what happens if one provision of the SI is declared invalid. Does this mean that the entire SI is declared invalid? The court will carry out a ‘test of sever ability’. If the other sections of the SI can apply without the one that was found invalid, then they will continue to apply
Agricultural Training Board v Aylesbury Mushrooms [1972] 1 All ER 280: this case told us failure to consult parties that would be affected by the SI meant that the regulations were not binding on the defendant
R v Secretary of State for Social Services, ex party Association of Metropolitan Authorities (AMA) [1986] 1 WLR 1: this case told us that failure to consult local authorities even when this is a mandatory requirement may not result in the court quashing the SI. The court held that “since the association’s principal objection was the lack of consultation rather than to the substance of the regulations that had been acted upon by local authorities and had been consolidated into regulations which were not challenged, it was inappropriate for the court in the exercise of its discretion to revoke the instrument”

Question 11

Brexit and Delegated Legislation

Answer 11

Controversy surrounding the use of Henry VIII powers in the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020

EU law during the Transitional Period:
the European Communities Act 1972 is repealed, but some of its key provisions were kept in force
EU law remained directly effective and enjoyed supremacy over domestic law

EU law after the Transitional Period: 
European Union (Withdrawal) Act 2018 preserves EU law which is part of domestic law through (i) EU-derived domestic legislation; and (b) retained EU law

Question 12

What are EU-derived domestic legislation?

Answer 12

EU laws that were given effect through UK primary or secondary legislation. Primary legislation would remain in force until repealed. Secondary legislation would also remain in force until repealed, notwithstanding that the parent act, i.e., the European Communities Act 1972, is repealed

Question 13

What is retained EU law?

Answer 13

All EU law that had direct effect (i.e., without implementation by domestic legislation) within the UK prior to Brexit is retained

Question 14

Essential reading for Delegated Legislation

Answer 14

Mark Elliott book: pp. 373-379