Overview of delegated legislation
31.1Parliament often delegates legislative power upon the executive by statute, and has made various arrangements for the scrutiny of the executive's exercise of this power.1 The justification and advantages of delegated legislation arise from its speed, flexibility and adaptability. Once Parliament has by statute laid down (often in some detail) the principles of a new law, the executive may by means of delegated legislation work out the application of the law in greater detail within these principles, adapting it to fit changing circumstances.2 Power may even be conferred, by what is known as a ‘Henry VIII clause’,3 to amend the statute itself by delegated legislation or to amend other statutes.
Criticism of the volume of delegated legislation and its lack of scrutiny by Parliament has been frequently made by committees of both Houses and by external observers.4 There have consequently been repeated attempts to improve scrutiny through better provision of information (see para 31.2 ), or creation of enhanced procedures for instruments of particular importance.5
This Chapter gives a brief overview of the topic, before dealing with the form and character of statutory instruments and Parliamentary control and scrutiny of such instruments, and the way in which scrutiny varies according to the type of instrument, in more detail.
- 1. The House of Lords Constitution Committee noted the Government had designated ‘functions for which delegated powers may be appropriate, including: providing for the technical implementation of a policy; filling in detail that may need to be updated frequently or is otherwise subject to change; and accommodating cases where the detailed policy has to work differently in different circumstances. Such purposes constitute reasonable uses of delegated powers.’ The Committee considered use of delegated legislation to formulate policy, create new criminal offences or public bodies ‘constitutionally unacceptable’: House of Lords Constitution Committee, Sixteenth Report, The Legislative Process: The Delegation of Powers, HL 225 (2017–19).
- 2. The use made of delegated legislation is subject to periodical review in the special reports of the Commons Statutory Instruments Committee and of the JCSI. See, for example, JCSI, First Special Report (2017–19) (HL 151, HC 1158); First Special Report (2013–14) (HL 6, HC 167). There have been three general reviews of the subject, namely that of the Committee on Ministers' Powers in 1932 (Cmd 4060), that of the Select Committee on Delegated Legislation in 1953 (HC 310 (1952–53)) and that of the Joint Committee on Delegated Legislation in 1972 (HL 184, HC 475 (1971–72)) and in 1973 (HL 188 and 204 (1972–73), HC 407 and 468 (1972–73)). Scrutiny arrangements for delegated legislation were reviewed by the Commons Procedure Committee in 1996 and 2000 (HC 152 (1995–96) and HC 48 (1999–2000)) and by the Lords Procedure Committee in 2003 and 2009 (HL 115 (2002–03) and HL 39 (2008–09)). Both the Commons and the Lords Procedure Committees have recently reviewed the procedure for the scrutiny of instruments to give effect to EU law or to revise UK law to take account of the UK's withdrawal from the European Union (HC 386 (2017–19), HL 163 (2017–19)). The Secondary Legislation Scrutiny Committee has published information on how it would go about the task: Thirty-Seventh Report, Sifting ‘proposed negative instruments' laid under the European Union (Withdrawal) Act 2018: criteria and working arrangements, HL 174 (2017–19). For further information about special treatment of such proposed negative instruments, see para 32.3.
- 3. See Committee on Ministers' Powers, Cmd 4060 (1932), pp 36–37 and 123, Annex II; and, for an exceptionally wide-ranging Henry VIII power, s 75 of the Banking Act 2009. Further examples of ‘Henry VIII clauses' making incidental, consequential and similar provision are set out in the annexes to the Third Report of the House of Lords Committee on Delegated Powers and Regulatory Reform, HL 21 (2002–03). This Committee's report on the European Union (Withdrawal) Bill stated that ‘The Bill confers on Ministers wider Henry VIII powers than we have ever seen’ (HL 22 (2017–19), para 9).
- 4. See, for example, Joint Committee on Statutory Instruments, Special Report, HL 216, HC 31–xxxvii (1985–86) and Special Report, HL 103, HC 582 (1995–96); House of Lords Constitution Committee, Sixteenth Report, The Legislative Process: The Delegation of Powers, HL 225 (2017–19); Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation (Hansard Society, 2014).
- 5. For example, Legislative Reform Orders, Remedial Orders and certain orders under the Localism Act 2011 (see para 31.14 ).