EXECUTIVE POWERS 3: DELEGATED LEGISLATION

Question 1

narrow powers

Answer 1

Strong control in legislation
Technical details to implement policy and strong parliamentary intention

Question 2

wider powers

Answer 2

Weaker control in legislation
Some discretion on how to implement policy and fulfill PS

Question 3

wide and very wide powers

Answer 3

Weak control in legislation
Significant discretion on how to implement policy
Weak parliamentary intention
Henry VIII clauses
Framework bills

Question 4

delegated legislation

Answer 4

When legislature (parliament) delegates power to the executive (government) to legislate for certain matters on its behalf

Question 5

statutory instruments

Answer 5

Orders
Regulations
Rules
Warrants
Schemes
Directions

Question 6

orders in council

Answer 6

Legislation made by the monarch on the advice of the privy council
Most made as statutory instruments
Sometimes orders are passed using royal prerogative (not delegated by parliament)

Question 7

reasons for delegated legislation

Answer 7

Parliament has limited time
Technicalities
Foreseeability
Emergencies
To allow local authorities to legislate on local matters

Question 8

upholding PS + challenge to PS?

Answer 8

Parliament delegates the powers + can limit the extent of the powers
‘Necessary evil’: parliament has to allow the executive to have some legislative powers
Only able to make secondary legislation w the authority of parliament
Some delegated powers are very wide and wide reaching
Some delegated powers can have the authority to amend primary legislation (henry viii clauses)

Question 9

example of narrow powers

Answer 9

Teaching and higher education act 1998
Powers to give students grants and loans
Provides discretion on the technical matters related to the Act
Different regulations can flow from the parent act to apply in england, wales, scotland and NI

Question 10

COVID - wider powers

Answer 10

Govs needed to react quickly to the pandemic
Used delegated powers to implement restrictions and responses to the pandemic
582 statutory instruments made by the UK gov
Separate statutory instruments made by welsh gov, scottish gov and NI exec
COVID act 2020 → delegates powers to governments to take emergency action to manage covid 19
Also powers in many more primary legislation can be used: public health (control of disease) act 1984

Question 11

Henry VIII Clauses

Answer 11

Historically: named from the statute of proclamations 1539 which gave King Henry VIII power to legislate by proclamation
Today: provision in an act of parliament enabling primary legislation to be amended or repealed by secondary legislation with or without further parliamentary scrutiny
Allows the gov to amend or repeal primary legislation
Effect on PS?
HOL particularly concerned with wide use of henry VIII clauses to deal w brexit, HOL constitution committee
European Union (Withdrawal) Bill: Interim Report(HL19, September 2017) para.48: “We accept that the Government will require some Henry VIII powers in order to amend primary legislation to facilitate the UK’s withdrawal from the European Union, but they should not be granted lightly, and they must come with commensurate safeguards and levels of scrutiny.”
Delegates powers to government to manage retained EU law, but can amend and repeal primary legislation too

Question 12

Very Wide Powers: Skeleton Bills

Answer 12

Very wide delegated legislation
Sets out principle of how the power should be excercised but allows very wide discretion for ministers to make changes to policy areas
Minimal restrictions and scrutiny from parliament
Retained EU law (revocation and reform) act 2023 s11-16, esp s14
Delegated powers and regulatory reform committee (HOL)
All powers no policy