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DELEGATED LEGISLATION CENTRAL ISSUES To what extent are executive bodies, especially ministers, permitted to make legislation?

? In Chapter 4, e sa that so!e theories o" separation o powers! s"ggest that legislation is a "n#tion that sho"ld $e #arried o"t $% parliaments rather than #overn!ents$ The &ritish #onstit"tion has developed in ays that allow ministers #onsidera$le powers to make legislation$ %inisters use dele#ated le#islation "or a 'ariet% o p"rposes& to $ring sections o" A#ts o (arliament into or#e) to ill in the detail o rameworks created by Acts o" 'arlia!ent( to )transpose! E* dire#ti'es into national law *see Chapter +,-( and,

!ost controversially, to repeal and amend A#ts o (arliament+ ,hat are the respe#ti'e roles o ministers * ho "or!ally si#n dele#ated le#islation- and #i'il ser'ants * ho advise on hat dele#ated le#islation is needed-. -ow e e#ti'el% does the *. (arliament #ontrol law/making by !inisters. A ran#e o" parliamentar% #ommittees ha'e $een set "p to examine $oth the merits o" le#islation proposed by !inisters and its )te#hni#al! #orre#tness$ So!e #ommentators, howe'er, 0"estion whether there is ade0"ate s#r"tin% "ro! the U/ 'arlia!ent$ In a s!all nu!ber o" cases, the #o"rts ha'e also had a role to pla% in ens"ring that ministers do not a#t "nlaw "ll% in exercisin# their le#islative po ers$ In relation to dele#ated le#islation, the #o"rts are not #onstrained

$% the prin#iple o parliamentar% s"prema#% and ma% 0"ash legislation made $% ministers+ There is a perplexin# array o" ter!inolo#y relatin# to le#islation !ade by !inisters& )dele#ated0, )subordinate0, and )secondary0 le#islation are all used as a #eneral label( this !ay ta1e the "or! o" )re#ulations0, rules0, and )2rders in Council0$ 1ost, $"t not all, take the orm o stat"tor% instr"ments!+ This chapter ill help you #et to #rips ith this vocabulary

INT2OD*3TION Issue o" dele#ated le#islation by executive to the constitutional issue This chapter is about delegated legislation3also called )subordinate0 and )secondary0 le#islation$ 4e exa!ine, "irst, wh% the #onstit"tion allows ministers 4part o the exe#"ti'e5 to make s"#h legislation and the pro#ess $% whi#h it is made$ In the "inal section o" the chapter, e loo1 at a case study on a #ontro'ersial attempt $% the go'ernment d"ring the 6778/79 parliamentar% session to a#0"ire greater powers than it had held previously to $ring a$o"t #hanges to A#ts o (arliament 4repealing or amending them5 and the #ommon law+

5e"ore e loo1 at so!e o" the speci"ic pro$lems raised $% the Legislati'e and 2eg"lator% 2e orm A#t 6779, e need to set it in the broader context o" the "se o primar% and se#ondar% legislation in the &ritish #onstit"tional s%stem+ As ell as learnin# about dele#ated le#islation, you can use the !aterial in this chapter to shed li#ht on t o o" the constitutional principles that e explored in Chapter , and Chapter 6 Thro"gh delegated legislation, the go'ernment makes legislation on a large s#ale with onl% minimal parliamentar% in'ol'ement$ To hat extent can this "act o" !odern #onstit"tional li e $e s0"ared with the idea that (arliament legislates!3a core aspect o" ideas about the soverei#nty o" 'arlia!ent.

Another obvious 7uestion is ho does the use o" dele#ated le#islation sit ith the theory o" separation o" po ers.

NAT*2E O: DELEGATED LEGISLATION 8ele#ated le#islation9 derived "ro! Act, and executive act ithin the po er con"erred, and can be stro1e do n by court Let us start by loo1in# at the #eneral characteristics o" dele#ated le#islation$ The "ollo in# extract re"ers to )statutory instru!ents0 *Sis-, hich, as ill be explained, are one o" the !ain "or!s in hich dele#ated le#islation is !ade in the United /in#do!$

Ed ard C$ 'a#e& 4hat are statutory instru!ents. Statutory Instru!ents are a "or! o" la $ :overn!ents can !a1e t o broad types o" do!estic la 3pri!ary and secondary le#islation$ 'ri!ary le#islation in 5ritain re"ers to la s hich derive their authority directly "ro! ;$$$< the Cro n in 'arlia!ent$ Accordin# to the traditional principle o" the soverei#nty o" 'arlia!ent ;$$$<, #overn!ent is "ree to pass hatever Acts it chooses, as lon# as they pass throu#h the "or!al sta#es o" parlia!entary approval and receive the Royal Assent$ Acts o" 'arlia!ent can, "or exa!ple, li!it or extend personal "reedo!s, create or abolish de!ocratic institutions such as local #overn!ents and nationalise or privatise industries$ Accordin#ly, Acts o" 'arlia!ent are supre!e la s hich cannot be challen#ed in the courts$ In practice the traditional notion o" the soverei#nty o" 'arlia!ent no lon#er applies in the sa!e ay since the United /in#do! =oined the European Union, but this does not detract "ro! the "act that pri!ary le#islation is, in principle, a hi#her "or! o" la hich can be challen#ed throu#h the courts

only i" it con"licts ith an even hi#her"or! o" la in the shape o" European Union le#islation$

Stat"tor% Instr"ments are se#ondar% *also ter!ed subordinate or dele#ated- legislation$ They are not the only type o" secondary le#islation, but rather the "or! !ost co!!only associated ith the ter!$ Secondary le#islation re"ers to la s hich derive their legitima#% rom powers gi'en to a minister or a department in pri!ary le#islation3 that is, in an A#t o (arliament$ The provisions o" !any Acts o" 'arlia!ent contain clauses alon# the lines that a Secretary o" State or a !inister !ay !a1e provisions by order to brin# a particular clause into operation or to speci"y, a!end or ad=ust ho the clause is to be interpreted or applied$ ;$$$< Se#ondar% legislation #an onl% $e made here there is an expli#it pro'ision in primar% legislation to do so( that is to say, here

#overn!ent has the le#al po ers or vires to issue dele#ated le#islation$ 3onse0"entl% e'er% Stat"tor% Instr"ment m"st #ontain re eren#e to spe#i i# #la"ses in A#ts o" 'arlia!ent that #ive #overn!ents vires to dra up subordinate le#islation$ All se#ondar% legislation has ;parent; primar% legislation$ %oreover, pro'isions within delegated legislation #an $e de#lared in'alid $% the #o"rts i", "or exa!ple, the% are <"dged not to $e #onsistent with the powers granted in the parent legislation or i" the procedures used to dra the! up are invalid$

The "ocus in this chapter is on dele#ated le#islation !ade by !inisters on the advice o" o""icials, depart!ental la yers, and other #overn!ent experts$

4a5 DELEGATED AND (2I1A2= LEGISLATION 3O1(A2ED 8ele#ated le#islation is less parlia!entary scrutiny co!pared to Act, =usti"ied on a!ount o" le#islation needed i" #o thru ordinary process 2ne o" the !ain the!es in the debates about the use *and alle#ed !isuse- o" dele#ated le#islation by !inisters is that, in some sit"ations in hich delegated legislation is "sed to gi'e legal a"thorit% to a poli#%, it ould be more #onstit"tionall% appropriate or primar% legislation to $e "sed+ 5ox ++$+ sets out a su!!ary o" so!e o" the !ain points o" di""erence bet een the t o cate#ories o" le#islation$ ,hat sho"ld $e o$'io"s is that delegated legislation re#ei'es ar less politi#al s#r"tin% rom (arliament than do &ills+

Delegated legislation #an $e <"sti ied on great deal o it is made e'er% %ear>some ?,777 pie#es #ompared to i t% or so &ills>so there m"st $e something to $e said or it$

>usti"y on insu""icient ti!e, too technical issue involved, need !ore "lexible and responsive, allo ad=ust!ent and updatin# but less scrutini?e by parlia!ent Consider 2o$ert &aldwin0s explanation& The #ommon <"sti i#ations "or secondary le#islation are that dele#ations o" rule9!a1in# are necessary and use"ul because& (arliament does not ha'e the time or the detailed 1no led#e to !a1e specialist bodies o" rules( that some s"$<e#ts are too te#hni#al to =usti"y parlia!entary attention( that se#ondar% r"les are m"#h more lexi$le and responsi'e than statutes( and that dele#ations o" rule9!a1in# po er allow ad<"stments and "pdating or amending exer#ises to $e #arried o"t e i#ientl%+

%uch !odern le#islation is carried out by !eans o ; ramework; items o primar% legislation, hich do little more than #on er on #ertain parties 4"s"all% ministers or agen#ies5 powers to iss"e se#ondar% legislation$ This prompts the #ommon #riti#ism that parliamentar% and demo#rati# s#r"tin% is weakened $% s"#h hea'% relian#e on se#ondar% legislation since such le#islation does not in'ol'e the "ll parliamentar% pro#ess and the de$ating stages that are associated ith pri!ary le#islation$ There is, indeed, idely seen to be so!e "orce in this point$

4$5 GETTING TO G2I(S ,IT- T-E TE21INOLOG= 4hat at "irst can see! li1e a ba""lin# , array o" ter!s is used in discussion about the sub=ect !atter o" this chapter$ To #et to #rips ith it, it #an help to take things in two stages+ )8ele#ated le#islation0 so called :irst, there is the vocabulary used "or this #eneric cate#ory o" la & the terms delegated!, se#ondar%!, and s"$ordinate! legislation are, in !ost contexts, interchan#eable$ %any constitutional syste!s !a1e a distinction bet een )pri!ary0 le#islation *in the United /in#do!, this !eans Acts o" 'arlia!ent- and dele#ated@secondary@subordinate le#islation$

A piece o" pri!ary le#islation *in the United /in#do!, cthe parent Act0)dele#ates0 or con"ers0 po er on a !inister or other public authority to !a1e rules *the dele#ated le#islation-$ The speci"ic section in the Act that con"ers this po er is o"ten called cthe enablin# provision0$

U/9 Si in "or!s o" Re#ulations, Rules and 2rders Second, there are ter!s o" a more te#hni#al nature that identi"y the various speci"ic "or!s o delegated legislation in the *nited .ingdom$ The 'ast ma<orit% o" dele#ated le#islation is !ade in the "or! o" )stat"tor% instr"ments! *Sis-, a "or! o" la that is reg"lated $% the Stat"tor% Instr"ments A#t @AB9+ The @AB9 A#t sets o"t the 'ario"s t%pes o parliamentar% pro#ed"re that apply hen a !inister decides to !a1e an SI3and here lies another con"usin# aspect o" the ter!inolo#y& the titles o" particular Sis "se the terms Order!, 2eg"lation!, or sometimes 2"les!+ :enerally spea1in#, there is no legal signi i#an#e to the "se o these titles3it is !ore to do ith historical accident and dra"tin# practices$

*c- O2DE2S IN 3O*N3IL9 , !eanin#&9 type o" SI re7uire extra special procedure and is a pri!ary le#islation on the other !eanin# A "urther ord o" clari"ication is needed about )2rders in Council0 *a ter! used in the extract "ro! Ed ard C$ 'a#e, :overnin# by Nu!bers, on p$ 444-$ There are two distin#t meanings$

2ne is that an Order in 3o"n#il is a t%pe o SI *li1e re#ulations, )ordinary0 orders, and rules, as e have explained-& it di""ers "ro! other Sis only in that as ell as bein# si#ned by a !inister be"ore under#oin# a parlia!entary procedure, it also has the extra ormalit% o $eing appro'ed at one o the monthl% meetings o the (ri'% 3o"n#il *a very short !eetin# o" the Aueen and a hand"ul o" senior !inisters at hich le#islation is nodded throu#h ithout any debate-$ An ena$ling pro'ision in a parent A#t will t%pi#all% spe#i % that the SI $e in the orm o an Order in 3o"n#il hen something o #onsidera$le importan#e is at stake+

The ter! )Order in 3o"n#il! is also "sed to re er a spe#ies o law that is primar% legislation+ The 3rown has retained prerogati'e power to make legislation dealin# ith a "e !atters, includin#, "or exa!ple, reg"lation o the #i'il ser'i#e+ Thus the 3i'il Ser'i#e Order in 3o"n#il is primar% legislation$ The #ontin"ed possi$ilit% o primar% legislation made $% the exe#"ti'e rather than (arliament is ano!alous in a !odern constitutional de!ocracy$

,-= *SE DELEGATED LEGISLATION? In hat circu!stances does 'arlia!ent dele#ate la 9!a1in# po ers to !inisters *and occaBsionally other public authorities, such as the National Asse!bly "or 4ales-. 4e can be#in to ans er this 7uestion by loo1in# at a ran#e o" enablin# provisions in Acts$

*a- 3O11EN3E1ENTS9 Ministers decide the time to bring the Act into force Identit% 3ards A#t 6779 ;repealed later< *6- This A#t *apart "ro! this section and sections 6C and 6Dshall #ome into or#e on s"#h da% as the Se#retar% o State !ay by order appoint( and di""erent days !ay be appointed "or di""erent purposes$ This is an exa!ple o" an enablin# provision gi'ing powers to ministers to allow them to de#ide when the time is right to brin# into "orce sections o" an Act o" 'arlia!ent$ 4hat "ollo s is an exa!ple o" a co!!ence!ent order !ade under this provision$ Note that the ena$ling pro'ision re ers to the Se#retar% o State!, but that the Order was, in a#t, made $% a <"nior minister on his $ehal $

%ade ,6rd Septe!ber ,EEC The Se#retar% o State, in exer#ise o the powers #on erred by section 44*6- o" the Identity Cards Act ,EEC, !a1es the "ollo in# 2rder& Section 6F o" the Identity Cards Act ,EEC *Report to 'arlia!ent about li1ely cost o" I8 cards sche!eshall #ome into or#e on ?7th Septem$er 6779+

C"sti i#ation& ad!inistrations need ti!e to !a1e ad=ust!ents, so !inisters should have po er to decide The use o" dele#ated le#islation to brin# into "orce pri!ary le#islation is #enerally regarded as a sensi$le pra#ti#al arrangement$ In relation to so!e provisions, it !ay be possible "or the Act to speci"y a particular date "or a section to co!e into "orce *or indeed the hole Act-3 see s$ 44*G- Identity Cards Act ,EEC on p$ 44D$ 5ut here, "or exa!ple, an A#t sets "p a large or #omplex administrati'e s#heme, #i'il ser'ants ma% ha'e to $e trained, co!puter e7uip!ent co!!issioned, and application "or!s printed and distributed$ It is regarded as a##epta$le to delegate this de#ision a$o"t timing to the go'ernment and co!!ence!ent orders are normall% s"$<e#t to no parliamentar% s#r"tin% pro#ed"re$

Althou#h !inister has the po er, but it is his duty to brin# into "orce as lon# as the Act did not be repealed, so he cannot announce that the ill never brin# into "orce An enablin# provision #reates a power, not a d"t%, to brin# sections o" an Act o" 'arlia!ent into "orce3 $"t as long as an ena$ling pro'ision has not $een repealed, there is a #ontin"ing o$ligation on the Se#retar% o State to #onsider whether to $ring a stat"tor% s#heme into or#e and he or she m"st a'oid doing an%thing that wo"ld "ndermine that o$ligation *"or exa!ple, anno"n#ing that he or she will ne'er $ring it into or#e-$ Ex parte :ire &rigades *nion

3onstit"tional iss"e& So!e Act never brou#ht into "orce, it is an Act but not bindin# Delegating this dis#retion to ministers has the #onse0"en#e that se#tions o A#ts, althou#h appearin# on the "ace o" the )statute boo10, are in a#t ne'er $ro"ght into or#e and so are not $inding law$ There are no statistics as to hat proportion o" the statute boo1 is not in "orce, but it !ay not be too "ar9 "etched to s"ggest @7 per #ent, in#l"ding some apparentl% important pro'isions$ Ar#uably, this #reates a tension with the #onstit"tional prin#iple o parliamentar% so'ereignt%& 'arlia!ent has decided that the la should be H, $"t that is ne'er t"rned into $inding law $e#a"se the go'ernment de#ides otherwise *even if, following the Fire Brigades Union case, they keep an open mind-$

3onstit"tional iss"e& a#ainst R2L, no one really 1no hen the Act ca!e into "orce There ma% also $e tensions with ideals o openness and a##essi$ilit% o law, hich are aspects o" the r"le o law& #itiDens and legal ad'isers m"st o ten str"ggle to work o"t whether a pro'ision in an A#t has a#t"all% $een $ro"ght into or#e or not+

4$5 :2A1E,O2. :ILLING %any A#ts o (arliament set out only a #eneral ramework!, or skeleton!, "or the policies sou#ht to be achieved, delegating matters o detail to the go'ernment to $e made $% se#ondar% legislation+ Exa!ple& E0"alit% A#t 6779 D+ *+- The Se#retar% o State ma% $% reg"lations make pro'ision a$o"t dis#rimination or harassment on #rounds o" sexual orientation$

8ebate on pros and cons There is a #ontin"ing de$ate about the pros and #ons o" includin# detailed rules in Acts o" 'arlia!ent the!selves or allo in# the #overn!ent to !a1e detailed rules by secondary le#islation on the basis o" dele#ated po ers$ The -ansard So#iet%, "ounded in +I44, is an independent and non9 partisan educational charity or1in# to sti!ulate 1no led#e o", and interest in, de!ocracy$ In the early +IIEs, it #arried o"t an in0"ir% into law/making, and received sub!issions "ro! !any or#ani?ations and individuals$

Disad'antages arg"mentE -ansard So#iet% 3ommission on the Legislati'e (ro#essE ,G4$ Several people and bodies thou#ht that the substantive provisions o" statute la should be dealt ith in Acts o" 'arlia!ent, ith only less i!portant details bein# le"t to dele#ated le#islation, or ere unhappy about the extensive use o" dele#ated le#islation$ Evidence to this e""ect as #iven in !e!oranda or orally by Lord Si!on o" :laisdale, the 5ar Council, Shelter, the C'A:, the Society o" County Secretaries, the TUC, the C5I, the La Society, the local authority associations, the Institute o" 'ublic Relations, the National Consu!er Council, the Scottish Consu!er Council, the Industry and 'arlia!ent Trust, the Institute o" 8irectors, 8r >ohn Cunnin#ha!, %', %r Andre 5ennett, %', and Sir 'eter E!ery, %'$

,GG$ The reasons "or this critical vie o" the use o" dele#ated le#islation ere nu!erous$ They included ob=ection to Js1eleton billsJ( the use o" dele#ated po ers to deter!ine the principles rather than the detailed i!ple!entation o" le#islation *the local authority associations #ave several exa!ples o" this-( the in#reased power it ga'e to 1inisters( the lac1 o parliamentar% time or s#r"tin% o" dele#ated le#islation and inade0"ate parliamentar% s#r"tin%( the di i#"lt% o #ampaigning against $ills that in#l"de extensi'e delegation o powers and a#ainst dra"t orders etc$( the "act that stat"tor% instr"ments #annot $e amended( the danger o the dra ters o $ills thinking the% #o"ld rel% on reg"lations to put !atters ri#ht i there were a law in a $ill *su##ested to us by the Child 'overty Action :roup-(

the "act that the dra ting o stat"tor% instr"ments/was sometimes dela%ed till too near the ti!e they had to be applied *noted by the K8A-( the "n#ertaint% o lea'ing things to reg"lations and aitin# "or the! to be !ade( the di i#"lt% o dis#o'ering the law on any !atter i it is $"ried in a n"m$er o stat"tor% instr"ments( and, as e!phasised to us by !any bodies, includin# the C5I and the Institute o" 8irectors, the di i#"lt% or (arliament and other $odies o appre#iating the "ll e e#t o a $ill $e ore the rele'ant delegated legislation is a'aila$le+

,GC$ 2thers ho #ave evidence believed that only the policy ele!ents and other !a=or provisions o" le#islation need be included in bills, or sa so!e advanta#es in leavin# !ore detail to dele#ated le#islation$ Supporters o" these vie s in ritten or oral evidence included Lord Lo e o" Aberavon, Lord Renton, Lord Aberdare, the Association o" 5ritish Insurers and LloydMs, the 55C and the Institute o" Chartered Accountants$

Ad'antages arg"mentE ,GF$ The !ain ar#u!ents advanced in "avour o" #reater use o" dele#ated le#islation ere also ei#hty$ The included& the ad'antage o keeping primar% legislation "n#l"ttered ( the "act that delegated legislation is not s"$<e#t to the same #onstraints o the parliamentar% time/ta$le as is pri!ary le#islation and that there"ore there can be more time or #ons"ltation( the greater lexi$ilit% it per!its *because it does not involve the passin# o" a bill throu#h 'arlia!ent- in "pdating the law to mat#h #hanged #ir#"mstan#es and in correctin# or a!endin# it in the li#ht o" experience( and its 'al"e or FAT GtaxH and other is#al legislation$ ,GD$ 2thers, includin# %r >ustice 'aul /ennedy representin# the >ud#esM Council, appeared to be content ith

the present balance bet een pri!ary and dele#ated le#islation$ ,GI$ The Renton Co!!ittee reco!!ended that #eneral principles should be set out in the body o" an Act, ith details o" a per!anent 1ind in its Schedules rather than its sections, and that only details liable to "re7uent !odi"ication should be dealt ith by statutory instru!ents *para$ ++$,G-$ ,CE$ Certain particular uses o" dele#ated le#islation ere stron#ly criticised$ Lord Renton, Lord Si!on o" :laisdale, the La Society and %r 5ob Cryer, %', ere stron#ly opposed to the increasin# use o" JLenry NIII clausesJ hich e!po er %inisters to a!end pri!ary le#islation by statutory instru!ent$

Advanta#es out ei#h disadvanta#e o" !a1in# #reater use o" dele#ated le#islation Conclusions and reco!!endations ,C+$ There has been a considerable increase in the volu!e o" dele#ated le#islation over the last thirty years, despite no #reat chan#e in the annual nu!ber o" statutory instru!ents$ Kor exa!ple, in +ICE there ere ,,4IC instru!ents coverin# ,,D,E pa#es( in +IDD, ,,6++ instruB!ents re7uired C,64, pa#es( Galmost 6/ ?777 per %earsH It is clear that !ore detail is bein# included in dele#ated le#islation as ell as in Acts$ It !ay be that the use o" dele#ated le#islation "or so!e purposes has decreased in so!e areas, hich ould explain the "airly stable nu!ber o" statutory instru!ents each year, but it is still heavily used in so!e other areas$ Kor exa!ple the Child Support Act +II+ contains over +EE re#ulation !a1in# po ers$

,C,$ As e have sho n, there are stron# di""erences o" vie on hether there should be !ore use o" dele#ated le#islation or less$ There are #ood ar#u!ents each ay$ 2pinion ithin our Co!!ission as also divided$ On $alan#e howe'er, we $elie'e that the main ad'antages o making greater "se o delegated legislation o"tweigh the 'er% real disad'antages+

3on#l"ding ad'antagesE 9 5ills beco!e si!ple and short and help 'arlia!ent "ocus on essential point hile 1eep the le#islation "lexible ,C6$ In particular e e!phasise the !erit o" keeping $ills as #lear, simple and short as possi$le$ This not only makes A#ts easier or the "ser to ollow, but it helps (arliament to o#"s on the essential points, and on policy and principle, in its debates on bills$ Above all e "ind advanta#es 9 "or the :overn!ent and "or those a""ected by le#islation 9 in keeping the legislati'e pro#ess lexi$le so that stat"te law #an $e kept as "p/to/date as possi$le$

I" si#ni"icant chan#es in the ay the la is to or1 9 in the li#ht o" experience o" ho it is operatin#, or "ollo in# chan#ed circu!stances 9 can only be !ade throu#h an Act o" 'arlia!ent, then, #iven the pressures on the parlia!entary ti!e9table, such chan#es !ay have to ait several years be"ore a bill can be introduced$ It is m"#h easier to $ring in amending stat"tor% instr"ments with less dela%$ Less rigidit% in pro#ed"res and timing sho"ld also a#ilitate impro'ed #ons"ltations$

Disad'antages& 9 scrutiny issue can be overca!e ;so not a disadvanta#e<, proble!s in deter!ination o" content, di""icult in accessin# the la 9 statute and SI ,C4$ 4e reco#nise the disadvanta#es o" extensive use o" dele#ated le#islation, but man% o them #o"ld $e o'er#ome+ The s#r"tin% o" statutory instru!ents in (arliament is inade0"ate and unsatis"actory, $"t it need not $e$ ;$$$ < There are pro$lems in debatin# bills be"ore %e!bers and those ad'ising them know what is to $e #ontained in the delegated legislation$ ;$$$ < Di i#"lt% is "ndo"$tedl% experien#ed in a##essing stat"te law when it is set o"t in a n"m$er o di erent do#"ments 9 $oth A#ts and stat"tor% instr"ments+ ;$$$ <

,CG$ A dividin# line !ust be dra n so!e here( so!eone !ust decide hat should be put in a bill and hat le"t to dele#ated le#islation$ At present it appears rather hapha?ard, ith 1inisters, departmental o i#ials and (arliamentar% 3o"nsel all ha'ing a sa% and di ering sol"tions $eing adopted$ Lord Renton has su##ested various #uidelines "or hat should be put in bills and hat excluded$

2e#ommend& a standard to separate content in 5ill and in dele#ated le#islation ,CC$ 4e see #reat di""iculty in layin# do n precise de!arcation rules 9 the political needs, content, le#al i!port and ur#ency o" each bill di""er 9 but e accept that some standard treatment, hich does not appear to exist at present, wo"ld $e desira$le+ 4e ourselves are not in a position to su##est hat this !i#ht be$ 4e elco!e, ho ever, the settin# up by the Louse o" Lords o" the 8ele#ated 'o ers Scrutiny Co!!ittee, hich has been #iven, as its "irst tas1, the #onsideration o gro"nd r"les and #riteria on what matters #an appropriatel% $e le t to delegated legislation+

2e#ommendE 5ills should contain central provision rather than le"t to !inisters to decide but detail le"t to !inisters to decide provided su""icient scrutiny and i!prove!ent in publication ,CF$ 4e e!phasise that statutory dele#ation sho"ld ne'er lea'e an A#t $are o e'er%thing except a "ra!e or1 o" !inisterial po ers, with all real s"$stan#e $eing le t to ministerial reg"lations et#+ This has $een done *see the le#islation on student loans in the Education *Students Loans- Act +IIE, "or exa!ple5) it sho"ld not $e repeated$ The !ain principles o" the le#islation and its #entral pro'isions sho"ld appear in the A#t itsel +

Sub=ect to that, and in the expectation that the ne Lords Co!!ittee ill be able to or1 out help"ul #round rules, on balance we re#ommend that the main pro'isions o stat"te law sho"ld $e set o"t in A#ts o" 'arlia!ent, $"t that most detail sho"ld $e le t to delegated legislation, provided that !uch more satis a#tor% pro#ed"res are adopted $% (arliament or s#r"tin% o delegated legislation and that impro'ed arrangements are made or the p"$li#ation o all stat"te law$

4#5 I1(LE1ENTATION O: E* LA, As e ill see in Chapter +,, the institutions o" the E"ropean *nion *the European 'arlia!ent, Co!!ission, and Council- make 'ario"s orms o legislation, in#l"ding dire#ti'es$ Dire#ti'es are addressed to !e!ber states and re0"ire them to $e implemented within their national legal s%stems within a spe#i ied period *o"ten t elve or ei#hteen !onths-$ Dire#ti'es set o"t the general poli#% to $e a#hie'ed$ In the United /in#do!, i #hanges to national law are needed to a#hie'e a dire#ti'es goals, the go'ernment ma% seek to do this either $% primar% legislation or $% delegated legislation+

4d5 -EN2= FIII 3LA*SES %inisters able to use 8L to a!end@repeal pri!ary le#islation So "ar, e have loo1ed at the use o" dele#ated le#islation "or the purposes o" *a- brin#in# sections o" Acts into "orce, *b- perhaps !ore si#ni"icantly, "illin# in "ra!e or1 Acts, and *ci!ple!entin# European Union la $ A "ourth purpose !ay stri1e you as unusual& delegated legislation #an $e "sed to amend or repeal A#ts o (arliament$ Thin1 about that "or a !o!ent& this is se#ondar% legislation $eing "sed to #hange primar% legislation$

Ena$ling pro'isions that #on er this s"rprising power on ministers have been d"$$ed -enr% FIII! pro'isions, so9called because so!e critics ar#ue that i" abused, -enr% FIII powers #ontained in A#ts o (arliament risk gi'ing ministers powers to s"spend parliamentar% legislation s"#h as were en<o%ed $% the notorio"sl% a"to#rati# Tudor 1in#$

To !a1e a little re"or! hen discover proble! a"ter Act received Royal Assent 4hy ould 'arlia!ent ish to #ive !inisters these po ers. 2ne ans er is that the% are "se "l or relati'el% small/s#ale ine/ t"ning to the re orms $eing introd"#ed $% the A#t witho"t the need to tro"$le (arliament with a &ill+ That mean the% need to go thr" again a ter ena#tment o the parti#"lar A#t O ten, minor pro$lems #ome to light onl% a ter an A#t has re#ei'ed ro%al assent$ %any Acts contain an enablin# clause si!ilar to the "ollo in#$

ExampleE 3ons"mer 3redit A#t 6779, s+ 9I 3onse0"ential amendments CD *+- The Se#retar% o State ma% $% order made $% stat"tor% instr"ment make s"#h modi i#ations o 3 an% A#t or s"$ordinate legislation * ithin the !eanin# o" the Interpretation Act +IFD *c$ 6E--, or any Northern Ireland le#islation or instru!ent !ade under such le#islation, as he thin1s "it in conse7uence o" any provision o" this Act$ *6- A statutory instru!ent containin# an order "nder this se#tion ma% not $e made by the Secretary o" State "nless a dra t has $een laid $e ore and appro'ed $% a resol"tion o ea#h -o"se o (arliament+

L2L co!!ittee to !onitor the inclusion o" Lenry NIII po ers in 5ills The use o" Lenry NIII clauses "or reasons other than !inor conse7uential a!end!ents re!ains controversial$ In +IIF, the -o"se o Lords esta$lished a sele#t #ommittee3 no 1no n as the Delegated (owers and 2eg"lator% 2e orm 3ommittee3to monitor the in#l"sion o -enr% FIII powers in &ills+ The Co!!ittee reports any concerns to the Louse o" Lords, so that peers ma%, i" they a#ree, seek to amend the &ill to remo'e or limit the power in 0"estion+

4e5 2EG*LATO2= 2E:O21 O2DE2S Lenry Clause !ay assist #ovt policy in cut do n red tape A "inal purpose "or hich Sis are used is to assist with go'ernment poli#% relating to reg"lation o $"siness a#ti'it%+ Since the +IIEs, both Conservative and Labour #overn!ents have reco#ni?ed that, in so!e contexts, there is simpl% too m"#h red tape 3"nne#essar%, o'erl% #omplex, or disproportionatel% #ostl% r"les and pro#ed"res, set o"t in A#ts o (arliament and Sis+ Three A#ts o (arliament ha'e set o"t s#hemes or remo'ing or amending reg"lator% re0"irements& the 8ere#ulation and Contractin# 2ut Act +II4( replaced by the Re#ulatory Re"or! Act ,EE+( and no the Le#islative and Re#ulatory Re"or! Act ,EEC$

These A#ts all #ontained $road -enr% FIII powers!+

3IFIL SE2FANTS AND 1INISTE2S 1A.ING DELEGATED LEGISLATION Lavin# surveyed the various types o" dele#ated le#islation that are routinely encountered in the 5ritish constitution syste!, e can no turn to loo1 at the process by hich the texts o" Sis is created, hich is si#ni"icantly di""erent "ro! that relatin# to a 5ill$

Stat"tor% Instr"ment (ra#ti#e9 deter!ine practice to achieve consistency in structure and style o" 8L, hich dra"ted by le#al branch o" depart!ent rather than 'arlia!entary Counsel 2""ice sub=ected to internal scrutiny Teren#e Daintith and Alan (ageE ,$, 8epart!ental practice It is in the nature o" hat is e""ectively a decentrali?ed syste! o" la !a1in# that the procedures "ollo ed by any t o depart!ents in !a1in# subordinate le#islation ill not be exactly the sa!e$ The nor!al practice, ho ever, Mis "or the ad!inistrative division concerned ith the sub=ect !atter o" the enablin# enact!ent to ta1e the lead on the preBparatory or1, underta1in# such consultation as necessary, obtainin# %inisterial instrucBtions, and co9operatin# ith the ie#ai )ti"" on the dra"tin# itsel"M *>oint Co!!ittee on 8ele#ated Le#islation +IF,& Append x D para$ D-$ 2nce a dra"t has been settled, a ti!eBtable is a#reed "or the printin#, s #nature layin#, publication, and brin#in# into operation o" the instru!ent$ All but routine

instru!ents are si#ned, or approved be"ore si#nature, by !inisters$ 8epart!ents hich !a1e extensive use o" subordinate le#islation usually have their o n !anuals settin# out the procedures to be "ollo ed depart!entally in the preparation and !a1in# o" instru!ents$ The 8epart!ent o" LealthMs 'reparation and %a1in# o" Statutory Instru!ents *8ece!ber +IIG-, hich is addressed to ad!inistrators as ell as la yers, "or exa!ple, provides a co!prehensive state!ent o" depart!ental procedures in relation to the !a1in# o" instru!ents$ L% Custo!s and ExciseMs Statutory Instru!ents& 'ractice and 'rocedure *+IIF-, by contrast, is pri!arily intended "or the use o" la yers in advisory tea!s ho have little or no experience in the preparation and !a1in# o" statutory instruB!ents$ %anuals intended "or the use o" la yers usually address points o" style as ell as procedure$

In #ontrast to primar% legislation, most se#ondar% legislation is dra ted $% the legal $ran#hes o departments rather than $% the (3O G(arliamentar% 3o"nsel O i#eH) the exceptions are those instru!ents, such as trans"er o" "unctions orders under the %inisters o" Cro n Act, hich are dra"ted on behal" o" the Cabinet 2""ice by 'arlia!entary Counsel *or Scottish 'arlia!entary Counsel-$ Responsibility "or ensurin# le#al e""ectiveness thus rests ith depart!ental le#al advisers$ As a sa eg"ard, instr"ments are "s"all% s"$<e#t to some orm o s#r"tin% within departments, hich !ay extend beyond strict 7uestions o" vires *on hich the validity o" instru!ents as la depends- to !ore #eneral 7uestions o" structure and style$ In the Lo!e 2""ice, the practice, hich is said to be typical o" practice across 4hitehall, is "or la yers at "or!er :rade G level to ta1e responsibility "or all instru!ents dra"ted in their tea!s$ In the 8TI

another la yer ta1es a Msecond loo1M at instru!ents, hile a senior la yer acts as a source o" advice on dra"tin# issues$ Instru!ents dra"ted by the 2""ice o" Solicitor to the Secretary o" State "or Scotland are scrutini?ed by a MstylistM ho is responsible "or chec1in# their vires and that they con"or! to the SolicitorMs 2""ice style$ 4here le#al advisers are in doubt about the vires o" proposed instru!ents, they are expected to consult the La 2""icers *Cabinet 2""ice +IIFd& para$ ,,-$ In the absence o" centrali?ed dra"tin# arran#e!ents, a meas"re o #onsisten#% in the str"#t"re and st%le o se#ondar% legislation has $een a#hie'ed thro"gh Stat"tor% Instr"ment 'ractice, hich pro'ides a means o #omm"ni#ating $est pra#ti#e to departments, and thro"gh the work o the Coint 3ommittee on Stat"tor% Instr"ments and its prede#essors+

2ole o 1inisters and 2ole o #i'il ser'ant The extra#t does not sa% an%thing a$o"t the role o ministers, mostl% done within department $% #i'il ser'ants This beca!e a live issue in a =udicial revie challen#e to an SI !ade under the %edicines Act +ICD prohibitin# the sale "or !edicinal purposes o" a dru# called 1ava91ava, a idely used herbal tran7uilli?er, and another !ade under the Kood Sa"ety Act +IIE bannin# its use in "oodstu""s$ A !inister in the relevant depart!ent !ust si#n the text produced by civil servants and #overn!ent la Byers( that !inister !ay either be a =unior !inister or the Secretary o" State *the !ost senior !inister in that depart!ent, and a !e!ber o" the Cabinet-$ 5ut ho !uch is the !inister in 7uestion expected to 1no about the sub=ect !atter o" the dra"t SI, or the reasons hy it is bein# !ade. Is a !inisterial si#nature =ust a rubber sta!p "or thin#s done by o""icials.

2 4-ealth Stores5 ' Se#retar% o State or -ealth 9 Collective 1no led#e o" civil servants ithin depart!ent treated as !inisters0 o n 1no led#e, civil servant is not treated as involved in decision9!a1in#, %inister is the one reserve to !a1e decision based on sub!ission that enou#h to !a1e in"or!ed decision ;but not ithout 1no in# anythin# or 1no in# everythin#< Sedtey L> In each case the !easure as authorised by a !inister in the na!e o" the Secretary o" State ;$$$<The principal #round o" challen#e is that in each instance the !inister authorised the !easBure in i#norance o" the relevant "act that prohibition as opposed by a leadin# psychophar!a9 colo#ical authority, 'ro"essor Ernst, on co#ent #rounds hich he had spelt out in a published !eta9analysis$ ;$$$< 4hat 1no led#e does the la i!pute to %inisters. The next 7uestion is alto#ether !ore pro"ound$ It is not ans ered, only broached, by the historic decision o"

this court ;the Court o" Appeal< in Carltona Ltd v Co!!issioners o" 4or1s ;+I46< , All ER GCE$ There the court as presented ith an atte!pt to transpose a "a!iliar doctrine o" the la o" a#ency3the rule that one ho is dele#ated cannot hi!sel" dele#ate 3into the "ield o" public ad!inistration, treatin# the !inister as the Cro nMs delBe#ate$ Lord :reene %R, ith his co!pendious 1no led#e o" public ad!inistration, recBo#nised the inappropriateness o" the ar#u!ent and ans ered it by holdin# that in la 3as the Northcote9 Trevelyan re"or!s had by then "ir!ly established in practice3civil servants acted not on behal" o" but in the na!e o" their !inisters$ 3arltona, ho ever, establishes only that the a#t o a d"l% a"thorised #i'il ser'ant is in law the a#t o his or her minister$ It does not de#ide or e'en s"ggest that what the #i'il ser'ant knows is in law the minister;s knowledge, regardless o whether the latter a#t"all% knows it+

Kor the novel proposition that it is, %r Cavana#h ;counsel "or the 8epart!ent o" Lealth< "ounds upon one sentence in Lord 8iploc1Ms speech in 5ushell v Secretary o" State "or the Environ!ent ; +ID+< AC FG& JThe #olle#ti'e knowledge, te#hni#al as well as a#t"al, o the #i'il ser'ants in the depart!ent and their collective expertise is to be treated as the minister;s own knowledge, his own expertise$J It is %r Cavana#hMs sub!ission that this a""ords a co!plete ans er, ithout resort to evidence, to the accusation that Lord Lunt ;the =unior !inister< as inade7uately in"or!ed about 'ro"essor ErnstMs vie s hen he si#ned the 2rder$ The depart!ental 1no led#e, hich included everythin# that as !aterial about 'ro"essor Ernst and his report, as the !inisterMs, even i" the !inister did not in "act 1no it$ This ar#u!ent, advanced belo by %r 'hilip Sales ;counsel "or the 8epart!ent o" Lealth at "irst instance<, as accepted by Crane >

;the =ud#e in the Ad!inistrative Court<$ Le held& F,$ It "ollo s that in"or!ation available to o""icials involved in advisin# a !inster is in"or!aBtion that can properly be said to be in"or!ation ta1en into account by the !inister$ It as sub!itted by %r$ Tho!pson AC that this ould !ean that in"or!ation 1no n to any o""icial in the depart!ent can be said to be 1no n to the !inister ta1in# a decision$ I do not thin1 that "ollo s$ I" on a challen#e to a decision, it ere to be asserted that the Secretary o" State too1 into account such in"or!ation, hen in "act no o""icial involved in the !atter 1ne o" it, that ould in !y =ud#!ent be an inaccurate assertion$ Nor, "or exa!ple, ould it be an accurate assertion i" the relevant in"or!ation as buried in a "ile but not in "act considered by any o""icial in the !atter$ Lo ever, it does not "ollo that the court ill in the ordinary ay investi#ate hether such an assertion is accurate$ In !y =ud#!ent, and ith #reat respect to Crane >, this part o" his decision is un"ounded in authority and unsound in la $ It is also, in !y respect"ul vie , antithetical to #ood #overn!ent$ It ould be an

e!barrass!ent both "or #overn!ent and "or the courts i" e ere to hold that a !inister or a civil servant could la "ully ta1e a decision on a !atter he or she 1ne nothin# about because one or !ore o""icials in the depart!ent 1ne all about it$ The proposition beco!es orse, not better, hen it is 7uali"ied, as Crane > 7uali"ied it and as %r Cavana#h no see1s to 7uali"y it, by re7uirin# that the civil servants ith the relevant 1no led#e !ust have ta1en part in brie"in# or advisin# the !inister$ To do this is to substitute "or the Carltona doctrine o" ordered devolution to appropriate civil servants o" decision9!a1in# authority *to adopt the lexicon used by Lord :ri""iths in 2ladehinde ;+II+< + AC ,G4- either a de "acto abdication by the la "ul decision9!a1er in "avour o" his or her adviser, or a division o" labour in hich the person ith 1no led#e decides nothin# and the decision is ta1en by a person ithout 1no led#e$ In contrast to Carltona, here this court #ave le#al authority to the practical reality o" !odern #overn!ent in relation to the devolution o" depart!ental "unctions, the doctrine "or hich %r Cavana#h contends does not, certainly to !y

1no led#e, re"lect the reality o" !odern depart!ental #overn!ent$ The reality, sub=ect no doubt to occasional lapses, is that !inisters *or authorised civil servants- are properly brie"ed about the decisions they have to ta1e( that in the brie"in#s evidence is distin#uished "ro! advice( and that !inisters ta1e so!e trouble to understand the evidence be"ore decidin# hether to accept the advice$ I ill co!e later in this =ud#!ent to the critical 7uestion o" ho !uch o" the evidence the !inister needs to 1no ( but I cannot believe that anybody, either in #overn!ent or a!on# the electorate, ould than1 this court "or decidin# that it as unnecessary "or a decision9!a1er to 1no anythin# !aterial be"ore reachin# a decision$ Kour years a"ter 5ushell as decided, the Li#h Court o" Australia had be"ore it an issue a1in to the issue be"ore us$ A !inister had !ade an order a""ectin# land ri#hts in i#norance o" a potentially crucial "act$ The "act as 1no n, ho ever, ithin his depart!ent$ It is o" interest that the !inisterMs counsel, 8avid 5ennett AC *no S9:-, one o" AustraliaMs leadin# constiBtutional la yers, did not atte!pt to advance the ar#u!ent hich has been advanced by %r

Cavana#h$ Le contended only that the !inister could la "ully dele#ate "act9"indin# to o""icials, and that there as no evidence that the !aterial "act had been overloo1ed at o""icial level& in other ords, he sou#ht to re"ine Carltona into a doctrine o" split or partial dele#ation$ The Li#h Court re=ected this endeavour$ :ibbs C> said& J2" course the %inister cannot be expected to read "or hi!sel" all the relevant papers that relate to the !atter$ It ould not be unreasonable "or hi! to rely on a su!!ary o" the relevant "acts "urnished by the o""icers o" his 8epart!ent$ No co!plaint could be !ade i" the depart!ental o""icers, in their su!!ary, o!itted to !ention a "act hich as insi#ni"icant or insubstantial$ 5ut i" the %inister relies entirely on a depart!ental su!!ary hich "ails to brin# to his attention a !aterial "act hich he is bound to conBsider, and hich cannot be dis!issed as insi#ni"icant or insubstantial, the conse7uence ill be that he ill have "ailed to ta1e that !aterial "act into account and ill not have "or!ed his satis"action in accordance ith la $J

%ason > *as he then as- pointed out that hat as bein# proposed as that Jthe !inister had po er to dele#ate part o" his decision9!a1in# "unction ;$$$< to his depart!ent, and that he exercised this po er by splittin# the "unction, leavin# his sta"" to decide hat "acts or !atters ould be ta1en into account$J Any dele#ation, he ent on to point out, !ust "irst be la "ul and secondly be sho n to have been !ade$ Le !ade it clear that in that case *as in thisthe issue as hether the decision9 !a1er had o!itted a consideration hich as in the obli#atory class o" relevance$ The Li#h Court as unani!ous in re=ectin# the ar#u!ent, both on principle and "ro! convenience, that the !inister could decide ithout actually 1no in# so!ethin# hich bore the re7uisite de#ree o" relevance to his decision$ I ill co!e belo to the valuable re!ar1s o" 5rennan > on the content o" the !inisterial obli#ation$ In the li#ht o" this si#ni"icant Australian decision one co!es bac1 to hat Lord 8iploc1 said in 5ushell$ The "ull passa#e reads& J4hat is "air procedure is to be =ud#ed not in the li#ht o"

constitutional "ictions as to the relationship bet een the !inister and the other servants o" the Cro n ho serve in the #overn!ent depart!ent o" hich he is the head, but in the li#ht o" the practical realities as to the ay in hich ad!inistrative decisions involvin# "or!in# =ud#!ents based on technical considerations are reached$ To treat the !inister in his decisionB!a1in# capacity as so!eone separate and distinct "ro! the depart!ent o" #overn!ent o" hich he is the political head and "or hose actions he alone in constitutional theory is accountable to 'arlia!ent is to i#nore not only practical realities but also 'arlia!entMs intention$ %inisters co!e and #o( depart!ents, thou#h their na!es !ay chan#e "ro! ti!e to ti!e, re!ain$ 8iscretion in !a1in# ad!inistrative decisions is con"erred upon a !inister not as an individual but as the holder o" an o""ice in hich he ill have available to hi! in arrivin# at his decision the collective 1no led#e, experience and expertise o" all those ho serve the Cro n in the depart!ent o" hich, "or the ti!e bein#, he is the political head$ The collective 1no led#e, technical as ell as "actual, o" the civil servants in the depart!ent and their collective expertise is to be treated as the

!inisterMs o n 1no led#e, his o n expertise$J ;$$$ <

The serio"s pra#ti#al impli#ation o the arg"ment ;advanced by counsel "or the 8epart!ent o" Lealth< is that, contrary to hat the decided En#lish cases ta1e "or #ranted, ministers need know nothing $e ore rea#hing a de#ision so long as those ad'ising them know the a#ts+ This is the law a##ording to Sir -"mphre% Apple$%+ It wo"ld #o'ertl% transm"te the ad'iser into the de#ision/maker+ And by doin# so it wo"ld in#identall% depri'e the ad'iser o an important shield against #riti#ism where the de#ision t"rns o"t to ha'e $een a mistake+

The only authority %r Cavana#h as able to produce hich appeared to chi!e ith his ar#u!ent as a decision o" Lord Clyde, sittin# in the 2uter Louse o" the Court o" Session, in Air ,EEE v Secretary o" State "or Transport *No ,- ;+IIE< SLT 66G$ Advice "ro! the Civil Aviation Authority hich by statute the Secretary o" State as re7uired to consider had been seen not by hi! but by an interdepart!ental or1in# party hich advised hi!$ Lord Clyde cited Carltona "or the uncontroversial proposition that J hat is done by his responsible o""icial is done by ;the !inister<J$

Lo ever, hile re=ectin# as Jtoo extre!eJ a sub!ission that the !ere physical delivery o" the advice to the depart!ent as su""icient, Lord Clyde accepted that Ji" it is #iven to an o""icial ho has responsibility "or the !atter in 7uestion, that should su""iceJ$ I" by this Lord Clyde !eant that such receipt ould a!ount in la to consideration by the Secretary o" State, I ould respect"ully disa#ree$ Kor the reasons I have #iven, it ould be incu!bent on such an o""icial to ensure that either the advice or a suitable precis o" it as included in the sub!ission to the !inister hose decision it as to be$

Sedley L> ent on to consider the 7uestion M8id the %inister leave relevant !atter out o" account in decidin# to !a1e the 2rder. Sedley L> loo1ed at the evidence to see hat as included and hat o!itted "ro! the brie"in# papers prepared "or the %inister$ 5ut hat in the end I a! unable to accept is that the !inister had less in"or!ation than the la re7uired$ The test is the "a!iliar public la test& as so!ethin# relevant le"t out o" account by hi! in ta1in# his decision. ;$$$ <

:iven the constitutional position as this court no holds it to be, a minister who reser'es a de#ision to himsel >and e0"all% a #i'il ser'ant who is a"thorised $% him to take a de#ision, m"st know or $e told eno"gh to ens"re that nothing that it is ne#essar%, because le#ally relevant, "or hi! to 1no is le"t out o" account$ This is not the same as a re0"irement that he m"st know e'er%thing that is rele'ant$ Lere, "or exa!ple, !uch that as highl% rele'ant as appropriately si"ted by the Co!!ission in "or!ulatin# its ad'i#e and then distilled within the department in order to make a s"$mission to the minister hich wo"ld tell him what it was rele'ant *not si!ply expedient or politic- or him to know$ ,hat it was rele'ant or the minister to know was eno"gh to ena$le him to make an in ormed <"dgment+

This centrally included the Co!!issionMs advice and the reasons "or it$ It also included the "act o" 'ro"essor ErnstMs opposition and the essential reasons "or it$ All this he had$

(A2LIA1ENT S 2OLE IN DELEGATED LEGISLATION Less scrutiny co!pared to 5ill as to relieve burden o" 'arlia!ent 2ne o" the rationales "or dele#ated le#islation is that it relie'es (arliament o some o the $"rden o legislating$ It is there"ore not surprisin# that dra"t Sis receive "ar less s#r"tin% than $ills$ So!e Sis3those that !a1e commencement orders bringing sections of an Act into force3are s"$<e#t to no parliamentar% pro#ed"res at all( other dra"t Sis are s"$<e#t to a range o o'ersight me#hanisms, depending on the importan#e o the s"$<e#t matter+

To understand the "ollo in# extract "ully, you need to #et to #rips ith so!e !ore technical ter!inolo#y$ An SI is said to be in )dra"t0 up until the point at hich it is si#ned by a !inister$ An SI is !ade0 hen it is si#ned by the !inister *loo1 bac1 at the exa!ple, The Identity Cards Act ,EEC set out on p$ 44D-$ An SI is )laid0 hen it is "or!ally deposited in desi#nated o""ices in the Louse o" Co!!ons and the Louse o" Lords$

T o parlia!entary procedures& Negati'e and A irmati'e -o"se o 3ommons In ormation O i#e, Stat"tor% instr"mentsE %any Sis are sub=ect to parlia!entary control( these Si0s ill "ollo one o" the procedures laid do n in the Statutory Instru!ents Act +I4C$ The type o" parlia!entary control ill usually be prescribed in the parent Act$ An instru!ent is laid be"ore 'arlia!ent either in dra"t "or! or a"ter the instru!ent has been !ade$ Accordin# to the procedure applied to the!, !ost Sis "all into one o" the classes sho n belo &

+$ Ne#ative 'rocedure 5eco!e la ithin a period i" not annulled by either house Some Sis $e#ome law on the date stated on the! $"t will $e ann"lled i either -o"se *or the Commons only, in the case of instruments dealing with financial matters- passes a motion #alling or their ann"lment within a #ertain time+ This time period is "s"all% B7 da%s includin# the day on hich it as laid$

No account is ta1en o" any ti!e durin# hichM'arlia!ent is dissolved or proro#ued, or durin# hich both Louses are ad=ourned "or !ore than "our days$ A !otion callin# "or annul!ent is 1no n as a prayer, couched in such ter!s as& That an hu!ble address be presented to Ler %a=esty prayin# that the Asylu! See1ers *Interi! 'rovisionsRe#ulations +III ;$$$< be annulledM$ Louse o" Co!!ons last annulled a Statutory Instru!ent on ,4th 2ctober +IFI *the 'ara""in *%axi!u! Retail 'rices- *Revocation- 2rder +IFI *S$I$ +IFI, No$ FIF--$

%' !ay table a !otion by E8% ; ith lar#e nu!ber o" si#natories by bac1 bencher< In the Louse o" Co!!ons any 1em$er ma% p"t down a motion to ann"l an SI s"$<e#t to the Negati'e (ro#ed"re+ In practice s"#h motions are no #enerally put do n as Earl% Da% 1otions *E8%s-, hich are motions or whi#h no time has $een ixed and, in the vast !a=ority o" cases, "or hich no ti!e is li1ely to be available$ A motion p"t down $% the O i#ial Opposition will o ten $e a##ommodated although there is no absolute certainty of this. An annul!ent !otion put do n by a bac1bencher is unli1ely to be dealt ith $"t a de$ate ma% $e arranged i there are a large n"m$er o signatories to the ED1$

In the -o"se o Lords prayers #an $e ta$led $% an indi'id"al 1em$er and are "s"all% de$ated, althou#h rarely put to the vote$ A recent exa!ple o" a s"##ess "l motion to annul occurred on ,, Kebruary ,EEE, hen the -o"se o Lords re<e#ted the Greater London A"thorit% Ele#tions 2"les *SI ,EEE@,ED-$ The

6+ A irmati'e (ro#ed"re Approval "ro! 'arlia!ent is needed ithin ti!e li!it This is less #ommon than the ne#ative procedure, currently representing a$o"t @7J o instr"ments s"$<e#t to (arliamentar% pro#ed"re, but pro'ides more stringent parliamentar% #ontrol since the instru!ent !ust receive 'arlia!entMs approval be"ore it can co!e into "orce or to re!ain in "orce$ %ost Sis sub=ect to the a""ir!ative procedure are laid in the "or! o" a dra"t 2rder, hich is later printed and added to the nu!erical run o" Sis hen it has been approved by both Louses$ Such orders cannot be !ade unless the dra"t order is approved by 'arlia!ent$ To do this, a motion appro'ing it has to $e passed $% $oth -o"ses

*or $% the 3ommons alone i deals with inan#ial matters-$

The responsi$ilit% lies with the minister, havin# laid the Instr"ment, to mo'e the motion or appro'al+ So!e Instru!ents are laid a"ter !a1in# and ill co!e into e""ect i!!ediately but re7uire subse7uent approval ithin a statutory period, usually ,D days *or occasionally 4E days- to re!ain in "orce$ This a#ain excludes periods hen 'arlia!ent is dissolved, proro#ued or ad=ourned "or !ore than "our days$ A#ain, the !otion is #enerally prepared by the rele'ant minister, ho is also responsible "or ens"ring that the motion is dis#"ssed within the ne#essar% time limit+ The last ti!e a dra"t Statutory Instru!ent sub=ect to a""ir!ative procedure as not approved by Resolution o" the Louse o" Co!!ons as on +,th Nove!ber +ICI hen Louse a#reed to %otions that the dra"t 'arlia!entary Constituencies

*En#land- 2rder +ICI, the dra"t 'arlia!entary Constituencies *4ales2rder +ICI, the 'arlia!entary Constituencies *Scotland- 2rder +ICI and the 'arlia!entary Constituencies *Northern Ireland- 2rder Mbe not approvedJ$ It is i!porBtant to note that Sis cannot, except in extre!ely rare instances here the parent Act provides other ise, be a!ended or adapted by either Louse$ Each Louse si!ply expresses its ish "or the! to be annulled or passed into la , as the case !ay be$ The parent Act *so!eti!es re"erred to as enablin# Act- indicates hich o" the above procedures ill apply to an SI$ An appendix to the Notes and 'roceedin#s o" the Louse records the day on hich an Instru!ent is laid$

Another section& Coint 3ommittee on SI G3ommittee o $oth ho"seH #he#k te#hni#al laws $"t not the merit 4hether or not they are debated on the "loor o" the Louse o" Co!!ons or Louse o" Lords * hich is very rarely-, Sis ma% $e s"$<e#t to s#r"tin% $% sele#t #ommittees3#ommittees o $a#k$en#h 1(s or Lords 4or $oth5+ 1ost mem$ers o the #ommittee ha'e no legal expertise or trainin#, $"t ea#h #ommittee #arries o"t its work with the assistan#e o a law%er on the parlia!entary sta""$ The Coint 3ommittee on Stat"tor% Instr"ments *a co!!ittee o" both Louses- takes no 'iew on the merits o the poli#% contained in the Sis, but instead #onsiders whether ea#h SI alls o"l o a n"m$er o spe#i ied te#hni#al laws, outlined in the Standin# 2rders o" each Louse$

Technical "la s listed by Standin# 2rder& Louse o" Co!!ons Standin# 2rder +G+ ;$$$I that it imposes a #harge on the p"$li# re'en"es or contains provisions re7uirin# pay!ents to be !ade to the Exche7uer or any #overn!ent depart!ent or to any local or public authority in consideration o" any licence or consent or o" any services to be rendered, or prescribes the a!ount o" any such char#e or pay!ent( that it is !ade in pursuance o" any enact!ent containin# speci"ic provisions ex#l"ding it rom #hallenge in the #o"rts, either at all ti!es or a"ter the expiration o" a speci"ic period( that it p"rports to ha'e retrospe#ti'e e e#t here the parent statute con"ers no express authority so to provide(

that there appears to have been "n<"sti ia$le dela% in the p"$li#ation or in the la%ing o it $e ore (arliament( that there appears to have been "n<"sti ia$le dela% in sending a noti i#ation under the proviso to section 4*+- o" the Statutory Instru!ents Act +I4C, where an instr"ment has #ome into operation $e ore it has $een laid $e ore (arliament) that there appears to be a doubt hether it is intra 'ires or that it appears to make some "n"s"al or "nexpe#ted "se o the powers con"erred by the statute under hich it is !ade( that or an% spe#ial reason its "or! or purport #alls or el"#idation ( that its dra ting appears to $e de e#ti'e( or on an% other gro"nd whi#h does not impinge on its merits or on the poli#% $ehind it( and to report its decision ith the

reasons thereo" in any particular case$

Ne co!!ittee& Louse o" Lords Select Co!!ittee on the %erits o" Statutory Instru!ents In ,EE6, ollowing #on#erns that !ost Sis ere sub=ect to ins" i#ient s#r"tin%, the -o"se o Lords esta$lished a Sele#t 3ommittee on the 1erits o Stat"tor% Instr"ments$ Its ter!s o" re eren#e are to draw to the attention o the -o"se o Lords to the ollowing+

-o"se o Lords Sele#t 3ommittee on the 1erits o Stat"tor% Instr"mentsE ;$$$< any instru!ent laid in the previous ee1 hich it #onsiders ma% $e& politi#all% or legall% important or that #ives rise to issues o" public policy li1ely to be o" interest to the Louse( inappropriate in 'iew o the #hanged #ir#"mstan#es since the passa#e o" the parent Act( inappropriatel% implementing E"ropean *nion legislation( or imper e#tl% a#hie'ing its poli#% o$<e#ti'es$

2OLE O: T-E 3O*2TS 8L sub=ect to =udicial revie 9court can even 7uash 8L hich contrary to s$C o" LRA As e have seen in relation to the National Association o" Lealth Stores case, discussed in 2 4National Asso#iation o -ealth Stores5 ' Se#retar% o State or -ealth on p$ 4GF, delegated legislation is amena$le to <"di#ial re'iew+ This is so e'en in those #ases in whi#h delegated legislation is s"$<e#t to a irmati'e pro#ed"re in 'arlia!ent, here it has been debated and expressly approved$ The prin#iple o parliamentar% s"prema#% has no appli#ation in relation to delegated legislation+

All o the gro"nds o <"di#ial re'iew are potentially applicable& illegalit% *"or exa!ple, the dele#ated le#islation is outside the a!bit o" the enablin# provision-( pro#ed"ral impropriet% *"or exa!ple, consultation as "la ed or non9existent-( irrationalit% *that is, the order de"ies lo#ic or accepted !oral standards-( E* law( or that it is #ontrar% to s+ 9 o the -"man 2ights A#t @AAI$ In cases in hich the #ontrar% to s+ 9 o the -"man 2ights A#t @AAI is held to apply, the #o"rt is not *as it is in relation to an Act o" 'arlia!entcon"ined to !a1in# a de#laration o in#ompati$ilit%( it ma% 0"ash the order in 0"estion so that it has no legal e e#t+

%inisters by usin# SI should satis"ied the le#ality o" the SI, althou#h SI had been debated in 'arlia!ent, ho ever, they are not debatin# on the le#ality o" the application o" SI In >aved, that "ollo s, the Court o" Appeal hadto consider hether the Asylu! *8esi#nated Countries o" 8estination and 8esi#nated Sa"e Third Countries- 2rder +IIC *SI +IIC@,CF+- had been la "ully !ade by the Lo!e Secretary( the 2rder had been debated and approved in both Louses o" 'arlia!ent$ The 2rder sou#ht to #ive le#al e""ect to a policy that certain countries should be desi#nated as #enerally "ree "ro! persecution, so enablin# an expedited process to be used "or returnin# "ailed asylu! see1ers ho ori#inally ca!e "ro! those desBi#nated countries *because the U/ authorities could assu!e that people returned ould not be sub=ect to !istreat!ent-$ The clai!ants sub!itted that the Lo!e Secretary had acted unla "ully in placin# 'a1istan on this hite list$ 2ne o" the clai!ants as a !e!ber o" the Ah!adi co!!unity, a reli#ious !inority in 'a1istan$

2 4Cawed5 ' Se#retar% o State or the -ome Department ;,EE+< E4CA Civ FDI GF$ ;$$$< 4hether there as in #eneral a serious ris1 o" persecution as a 7uestion hich !i#ht #ive rise to a #enuine di""erence o" opinion on the part o" t o rational observers o" the sa!e evidence$ A =udicial revie o" the Secretary o" StateMs conclusion needed to have re#ard to that considerable !ar#in o" appreciation$ There was no 0"estion here o #ond"#ting a rigoro"s examination that re0"ired the Se#retar% o State to <"sti % his #on#l"sion+ I" the applicants ere to succeed in sho in# that the desi#nation o" 'a1istan as ille#al, they had to de!onstrate that the evidence clearly established that there as a serious ris1 o" persecuBtion in 'a1istan and that this as a state o" a""airs that as a #eneral "eature in that country$ Kor a ris1 to be serious it ould have to a""ect a si#ni"icant nu!ber o" the populace$

GD$ It wo"ld not $e right to #on#l"de that, $% appro'ing the Order, ea#h -o"se o (arliament Gsatis % the legalit% testH veri"ied that 'a1istan and the other countries na!ed in that 2rder ere countries in hich there as, in #eneral, no serious ris1 o" persecution The de#ision or ea#h -o"se was simpl% whether or not to appro'e the Order( the Louse as not re0"ired to r"le on its legalit%$ Neither -o"se #o"ld amend the Order$ It was or the Se#retar% o State, not or either -o"se, to satis % himsel as to the legalit% o that Order+ It cannot credibly be su##ested that, in short debates in hich no !ention at all as !ade o" the position o" o!en, there as an evaluation hich led to the conclusion that 'a1istan as a country hich the Secretary o" State could le#ally include in the 2rder$

The ar#u!ents advanced by the applicants and the conclusions o" Turner > ;the =ud#e at "irst instance< did not, in the event, controvert the proceedin#s o" either Louse o" 'arlia!ent$ Thus the Secretary o" StateMs contention that Article I o" the 5ill o" Ri#hts,;+E< as contravened "ails both in la and on the "acts$ Lord 'hillips o" 4orth %atravers %R, #ivin# the =ud#!ent o" the Court, held that the Lo!e Secretary could not have reasonably concluded, on the evidence, that o!en ere not at ris1 "ro! persecution in 'a1istan$ The sa!e as true in relation to Ah!adis$ Accordin#ly, the )Secretary o" States inclusion o" 'a1istan in the 4hite List as irrationalJ and the 2rder, in relation to 'a1istan, as 7uashed$

Supre!e Court hold that !inister0s order as ultra vires due to the enable provision is not ide enou#h to inter"ere "unda!ental ri#ht, this is to uphold 'S but not inter"ere ith the ills o" 'arlia!ent In one o" its "irst cases, the ne *. S"preme 3o"rt had to re'iew the law "lness o two pie#es o delegated legislation that were designed to reeDe the assets o s"spe#ted terrorists+ The enablin# provision relied on by the #overn!ent as s$ + o" the United Nations Act +I4C, hich stated that i" the UN Security Council called on the United /in#do! to i!ple!ent !easures, cLis %a=esty !ay by 2rder in Council !a1e such provision as appears to Li! necessary or expedient "or enablin# those !easures to be e""ectively applied, includin# * ithBout pre=udice to the #enerality o" the precedin# ords- provision "or the apprehension, trial and punish!ent o" persons o""endin# a#ainst the 2rder$ The na!es o" the three clai!ants appeared on a list dra n up by the UN as people bein# involved in terroris!$ The U/ #ovBern!ent in

turn desi#nated the! as people hose assets ould be "ro?en under the orders$ At no point as there any procedure "or the clai!ants to challen#e the UN or the #overnB!ent s deter!ination, in clear contravention o" basic principles o" procedural "airness$ The S"preme 3o"rt held that the orders were "ltra 'ires as the% ell o"tside the s#ope o" s$ + o" the +I4C Act& the ena$ling pro'ision was not s" i#ientl% wide to permit ministers to inter ere with "ndamental rights to air pro#ess+ Lord 'hillips )topped0 and Mtailed0 his =ud#!ent by re"erence to the constitutional "ra!e or1 in hich the court as operatin#$

Ahmed and ors ' -1 Treas"r% 4C*STI3E inter'ening5 4Nos @ and 65 DG$ It is particularly appropriate that these should be the "irst appeals to be heard in the Supre!e Court o" the United /in#do!, "or they concern the separation o" po ers$ At issue is the extent to hich 'arlia!ent has, by the United Nations Act +I4C dele#ated to the executive the po er to le#islate$ Resolution o" this issue depends "pon the approa#h properl% to $e adopted $% the #o"rt in interpreting legislation hich ma% a e#t "ndamental rights at #ommon law or "nder the E"ropean 3on'ention on -"man 2ights$ ;$$$< +GF$ No$od% sho"ld #on#l"de that the result o" these appeals #onstit"tes <"di#ial inter eren#e with the will o (arliament$ 2n the contrary it "pholds the s"prema#% o (arliament in de#iding whether or not

meas"res sho"ld $e imposed that a e#t the "ndamental rights o those in this #o"ntr%$ In response to the rulin#, the #overn!ent "ast9trac1ed a 5ill throu#h 'arlia!ent, hich beca!e the Terrorist Asset9Kree?in# *Te!porary 'rovisions- Act ,E+E( this as subse7uently replaced by the Terrorist Asset9Kree?in# etc$ Act ,E+E$ So, usin# pri!ary le#islation, the #overn!ent no has po er to i!ple!ent UN Security Council !easures on asset "ree?in#$ The pri!ary le#islation includes a ri#ht o" appeal "or the desi#nated person$

2EG*LATO2= 2E:O21 &ILL SAGA RRA ,EEC con"er too !uch po er to !inister As e have already noted, one parti#"lar "se o Sis is to "rther the go'ernment!s poli#% on $etter reg"lation! *#"tting o"t "nne#essar% red tape rom $"siness and other a#ti'ities-$ The Sis in this #ontext are #alled reg"lator% re orm orders! *RR2smade "nder the powers delegated to ministers by the Re#ulatory Re"or! Act ,EE+ and, !ore recently, its repla#ement, the Legislati'e and 2eg"lator% 2e orm A#t 6779+ In the "inal part o" this chapter, e loo1 at the bac1#round to the ,EEC Act, hich helps to shed li#ht not only on issues about the use o" dele#ated le#islation, but also on so!e o" the "unda!ental principles that underpin constitutional activity$

The 6779 A#t inall% re#ei'ed ro%al assent in Nove!ber ,EEC, but in a !uch revised "or! co!pared to the 5ill "irst introduced by the #overn!ent into the Louse o" Co!!ons in Kebruary ,EEC$ Li1e its predecessor *the ,EE+ Act-, the Legislati'e and 2eg"lator% 2e orm &ill #ontained a $road -enr% FIII power #on erring power on ministers to #hange the stat"te $ook+ &"t the &ill went m"#h "rther+

Letter to The Ti!es, +C Kebruary ,EEC Sir, Clause one o" the Le#islative and Re#ulatory Re"or! 5ill *Co!!ent, Keb +G- provides that& JA %inister o" the Cro n !ay by order !a1e provision "or either or both o" the "ollo in# purposes 3 a- re"or!in# le#islation( b- i!ple!entin# reco!!endations o" any one or !ore o" the United /in#do! La Co!!issions, ith or ithout chan#es@M This has been presented as a si!ple !easure Jstrea!linin#J the Re#ulatory Re"or! Act ,EE+, by hich, to help industry, the :overn!ent can reduce red tape by a!endin# the Acts o" 'arlia!ent that ove it$ 5ut it #oes !uch "urther& i" passed, the :overn!ent could re rite al!ost any Act and, in so!e cases, enact ne la s that at present only 'arlia!ent can !a1e$ The 5ill sub=ects this drastic po er to li!its, but these are "e and ea1$ I" enacted as it stands, e believe the 5ill ould !a1e it possible "or the :overn!ent, by dele#ated le#islaBtion, to do *inter alia- the "ollo in#&

O create a ne o""ence o" incite!ent to reli#ious hatred, punishable ith t o yearsM i!prison!ent( O curtail or abolish =ury trial( O per!it the Lo!e Secretary to place citi?ens under house arrest( O allo the 'ri!e %inister to sac1 =ud#es( O re rite the la on nationality and i!!i#ration( O Jre"or!J %a#na Carta *or hat re!ains o" it-$ It ould, in short, create a !a=or shi"t o" po er ithin the state, hich in other countries ould re7uire an a!end!ent to the constitution( and one in hich the inner ould be the executive, and the loser 'arlia!ent$ 8avid Lo arth, %' "or Ca!brid#e, !ade this point at the Second Readin# o" the 5ill last ee1$ 4e hope that other %'s, on all sides o" the Louse, ill reco#nise the dan#ers o" hat is bein# proposed be"ore it is too late$ 'R2KESS2R >$ R$ S'ENCER, AC 'R2KESS2R SIR >2LN 5A/ER, AC 'R2KESS2R 8ANI8 KEL8%AN 'R2KESS2R CLRIST2'LER K2RSPTL 'R2KESS2R 8ANI8 I55ETS2N

'R2KESS2R SIR 8ANI8 4ILLIA%S, AC La Kaculty, University o" Ca!brid#e

%inisters can alter the la , !a1e ne cri!e by "acin# less ti!e in co!!ittee and debate on the "loor, 'arlia!ent cannot a!end and they can only ta1e it@leave it Da'id -owarth as Liberal 8e!ocrat %' "or Ca!brid#e and is Reader in La at Ca!brid#e University$ 8avid Lo arth, M4ho ants the Abolition o" 'arlia!ent 5ill.M& Lardly anyone has noticed, but 5ritish de!ocracy is sleep al1in# into a sinister orld o" !inisterial po er$ Least ee1 all eyes ere on the Louse o" Co!!ons as it debated identity cards, s!o1in# and terroris!$ The !edia reported both hat %'s said and ho they voted$ Kor one ee1 at least, the Co!!ons !attered$ All the !ore peculiar then that the previous Thursday, in an al!ost deserted cha!ber, the :overn!ent proposed an extraordinary 5ill that ill drastically reduce parlia!entary discusBsion o" "uture la s, a 5ill so!e constitutional experts are

already callin# Jthe Abolition o" 'arlia!ent 5illJ$ A couple o" =ournalists noticed, includin# 8aniel Kin1elstein o" The Ti!es, and a couple !ore pric1ed up their ears last ee1 hen I hi#hli#hted so!e bitin# acade!ic criticis! o" the 5ill on the letters pa#e o" this paper$ 5ut beyond those rare"ied circles, that e are sleep al1in# into a ne and sinister orld o" !inisterial po er see!s barely to have re#istered$ The borin# title o" the Le#islative and Re#ulatory Re"or! 5ill hides an astonishin# proposal$ It gi'es ministers power to alter an% law passed $% (arliament+ The onl% limitations are that new #rimes #annot $e #reated i" the penalty is greater than two %ears in prison and that it #annot in#rease taxation$

&"t an% other law #an $e #hanged, no matter how important$ All !inisters ill have to do is propose an order, ait a "e ee1s and, voila, the la is chan#ed$ Kor ministers the ad'antages are o$'io"s& no more tedio"s de$ates in whi#h the% ha'e to answer awkward 0"estions$ Instead o" a "ull dayMs debate on the principle o" the proposal, detailed line9by9line exa!ination in co!!ittee, a second chance at speci"ic a!end!ent in the Co!!ons and a "inal debate and vote, ministers will ha'e to a#e at most a short de$ate in a #ommittee and a one/and/a/hal ho"r de$ate on the loor$

Kre7uently the :overn!ent less than that$

ill "ace

No amendments will $e allowed$ The legislati'e pro#ess will $e red"#ed to a game o take/it/or/ lea'e/it+

Increase business e""iciency but decrease de!ocratic culture Da'id -owarthE The 5ill replaces an existin# la allo s !inisters to relie'e reg"lator% $"rdens$ that

5usiness as enthusiastic about that principle and the Go'ernment seems to ha'e #on'in#ed the $"siness lo$$% that the latest &ill is <"st a new, impro'ed 'ersion$ 4hat !a1es the ne la di""erent, ho ever, is not onl% that it allows the Go'ernment to #reate extra reg"lation, in#l"ding new #rimes, but also that it allows ministers to #hange the str"#t"re o go'ernment itsel $ There might $e $"siness people so atta#hed to the notion o e i#ien#% and so ignorant or s#orn "l o the prin#iples o demo#ra#% that they "ind such a proposition attractive$

Ordinar% #itiDens sho"ld ind it alarming+

5ody created by statute !ay "ace re9 or#anisation @ abolished Da'id -owarthE An% $od% #reated $% stat"te, includin# local authorities, the courts and even co!panies, might ind themsel'es reorganised or e'en a$olished+ Since the po ers o" the -o"se o Lords are de ined in A#ts o (arliament, e'en the% are s"$<e#t to the &ill+ ;this part no i!portant any!ore< Loo1in# bac1 at last ee1Ms business in the Co!!ons, the 5ill !a1es a !oc1ery o" the decisions %'s too1$ Carryin# I8 cards could be !ade co!pulsory, s!o1in# in oneMs o n ho!e could be outla ed and the de"inition o" terroris! altered to !a1e ordinary political protest punishable by li"e i!prison!ent$ Nor ill the Lu!an Ri#hts Act save us since the 5ill !a1es no exception "or it$

The 5ill, bi?arrely, even applies to itsel", so that !inisters could propose orders to re!ove the li!itations about t o9year sentences and taxation$ It also includes a "e desultory 7uesBtions *alon# the lines o" Ja! I satis"ied that I a! doin# the ri#ht thin#.J- that !inisters have to as1 the!selves be"ore proceedin#, all dra"ted sub=ectively so that court challen#es ill "ail, no !atter ho preposterous the !inisterMs ans er$ Even these 7uestions can be re!oved usin# the 5illMs o n procedure$ Indeed, at its !ost extre!e, in a !anoeuvre a1in to a le#islaBtive Indian rope tric1, !inisters could use it to trans"er all le#islative po er per!anently to the!selves$

'arlia!ent beco!e only #ive le#al cover to hat !inister ant to do Da'id -owarthE The &ill raises "ndamental 0"estions about the role o (arliament$ %inisters, e##ed on, so!e suspect, by the Civil Service, treat (arliament as a 'oting ma#hine$ Its <o$, in their 'iew, is merel% to gi'e legal #o'er to whate'er ministers want to do$ They treat debate and deliberation as !ere chatter be"ore the all9i!portant vote$ They see no great di eren#e $etween "ll parliamentar% pro#ed"re and a tr"n#ated pro#ed"re or stat"tor% instr"ments $e#a"se, or them, the res"lt either wa% is the same, that ministers re#ei'e legal a"thorit% or their plans+

>ust as a per"ect cri!inal statute "or !inisters appears to be one in hich everythin# is ille#al so that prosecutors have discretion to put anyone in "ront o" a court, a per"ect authorisin# statute is one that !a1es la "ul any !inisterial act or policy$ So!e o" us have a di""erent vie $ 4e thin1 that deliberation and debate !atter, that they are part o" hat !a1es parlia!entary de!ocracy or1 and !a1e the ne la s e pass le#iti!ate$ 8eliberation i!proves le#islation but !ore i!portantly, it "orces #ovBern!ents to #ive reasons "or their proposals that #o beyond their narro sel"9interest$ In private !eetin#s o" the #overnin# party, or in the Cabinet, or above all in telephone calls bet een !inisters and special advisers, purely partisan reasons can hold s ay$ 5ut in public, especially here there is real debate, !inisters have to o""er reasons that !i#ht persuade others$ I" they cannot thin1 o" any such reasons, their e!barrass!ent constrains the!$ As the political scientist >on Elster says, even hypocrisy can have a civilisin# e""ect$ The :overn!ent clai!s that there is nothin# to orry about$ The po ers in

the 5ill, it says, ill not be used "or JcontroversialJ !atters$ 5ut there is nothin# in the 5ill that restricts its use to JuncontroversialJ issues$ The !inister is as1in# us to trust hi!, and, orse, to trust all his collea#ues and all their successors$ No one should be trusted ith such po er$ As >a!es %adison #ave arnin# in The Kederalist 'apers, e should re!e!ber hen handin# out political po er that Jenli#htened states!en ill not al ays be at the hel!J$ This 5ill should !a1e one doubt hether they are at the hel! no $ 5y the ti!e the 5ill had passed throu#h the Louse o" Co!!ons, the #overn!ent had !ade several concessions in the "ace o" opposition "ro! %'s o" all parties and a critical report "ro! a Louse o" Co!!ons select co!!ittee$ 4hen the 5ill as introduced to the Louse o" Lords, it as scrutini?ed by the Louse o" Lords Constitution Co!!ittee$ Louse o" Lords Constitution Co!!ittee, Le#islative and Re#ulatory Re"or! 5ill, ++th Report, Session ,EEG9EC, LL +I4 ;$$$ T<he bill has been substantially a!ended in the Louse o" Co!!ons$ The :overn!ent has conceded that the dele#ation by 'arlia!ent o"

idely dra n po ers to %inisters to chan#e the statute boo1 "or the broad purpose o" Jre"or!in# le#islationJ is excessive "or the avo ed purposes o" the bill$ 4ith cross9party support, that provision has been replaced ith po ers in 'art + o" the bill hich are intended to be exercised only "or purposes related to better re#ulation ;$$$ <$ The bill has also been a!ended to include an express po er "or co!!ittees o" each Louse to reco!!end on certain speci"ied #rounds that a dra"t order be not proceeded ith by the %inister *clauses +F*4-, +D*6-, and +I*G--$ A "urther a!end!ent prevents 'art + po ers to chan#e the statute boo1 bein# exercised in relation to 'art + o" the Le#islative and Re#ulatory Re"or! Act itsel" or the Lu!an Ri#hts Act +IID *clause I-$ Nonetheless, the bill continues to #ive rise to 7uestions o" principle about principal parts o" the constitution$ 4e concur ith the state!ent o" the 'arlia!entary Under9Secretary "or the Cabinet 2""ice *%r 'at %cKadden %'-, !ade in the "inal sta#es o" the billMs passa#e in the Louse o" Co!!ons& J2ur sub=ect !atter is sensitive, because it ;is< not =ust about hat the :overn!ent o" the day !i#ht ant( it also ta1es us into

the real! o" the relationBship bet een :overn!ent and 'arlia!ent, and 'arlia!entMs proper role in the scrutiny and approval o" :overn!ent proposals in this sphereJ$ 8ele#ation o" la 9!a1in# po ers to !inisters 6E$ The co!pro!ise that has been reached in the United /in#do! bet een e""ective le#Bislative processes and parlia!entary scrutiny is "or 'arlia!ent to dele#ate so!e la 9!a1in# po ers to %inisters$ In le#al syste!s ith di""erent understandin#s "ro! our o n o" the principle o" separation o" po ers *such as the USA, Ireland and South A"rica-, such dele#aBtion is re#arded as anathe!a and is constitutionally prohibited$ Australia, Canada and India =oin the United /in#do! in per!ittin# such dele#ation$ So "or !any years it has been co!B!onplace "or Acts o" 'arlia!ent to dele#ate po ers to %inisters to !a1e le#islation in the "or! o" orders *statutory instru!ents- to !a1e detailed rules #overnin# statutory sche!es$ %ore than 6,4EE orders ere !ade in ,EE4 alone$ 6+$ Co!pared to the bill procedure, parlia!entary procedures "or

scrutinisin# dele#ated le#9islation are less ri#orous$ The >oint Co!!ittee on Statutory Instru!ents considers hether a dra"t order needs to be dra n to the attention o" 'arlia!ent as exceedin# the li!its o" the authority dele#ated to the %inister$ In this Louse, since 8ece!ber ,EE6, the Co!!ittee on the %erits o" Statutory Instru!ents considers hether the policy i!plications o" a dra"t order are such that it ou#ht to be dra n to the attention o" the Louse$ 8ebates on orders are no rare$ In the Louse o" Co!!ons, such debates are nor!ally conducted in a standin# co!!itBtee$ 8ebatin# ti!e is li!ited to IE !inutes$ No a!end!ents can be !oved$ It is also o" note that the text o" dele#ated le#islation is nor!ally dra"ted by depart!ental la yers rather than 'arlia!entary Counsel * ho are responsible "or bills-$ 6,$ %ost le#islative po ers dele#ated to %inisters by 'arlia!ent are "or the purpose o" setBtin# out in !ore detail the practical !eans to i!ple!ent the policy enacted by the enablin# Act o" 'arlia!ent$ 5ut %inisters !ay also be con"erred ith JLenry NIIIJ po ers to !a1e orders that chan#e the statute boo1$ There are several #ood reasons "or special caution about such po ers$ 2ne is

that they ris1 under!inin# the le#islative supre!acy o" 'arlia!ent, a central principle o" the United /in#do!Ms constitution, an aspect o" hich is that Jno person or body is reco#nised by the la o" En#land as havin# a ri#ht to override or set aside the le#islation o" 'arlia!entJ$ Another is that parlia!entary scrutiny o" !inisterial orders is less ri#orous than scrutiny !eted out to le#islative proposals that are contained in bills, yet in this case the %inister ill be a!endin# or repealin# pri!ary le#islation$ 66$ A third and o"ten overloo1ed reason "or caution is that they !a1e the statute boo1 co!plex and uncertain$ 4hen a %inister exercises a Lenry NIII po er to a!end a provision in an Act o" 'arlia!ent, the order by hich that is done is dele#ated le#islation and the a!ended provision in the Act o" 'arlia!ent retains the character o" dele#ated le#islation$ The 'arlia!entary Roll conBclusively states hat is and is not an Act o" 'arlia!ent *sub=ect to the principle o" i!plied repeal-$ The "act that the Controller o" L%S2, or a co!!ercial publisher, !ay print an Act o" 'arlia!ent ith a!end!ents to it !ade by order cannot, in and o"

itsel", !a1e those a!end!ents part o" the Act o" 'arlia!ent$ The "act that the order itsel" calls the a!ended provision part o" an Act o" 'arlia!ent cannot be conclusive o" that status$ The a!ended provision retains its status as dele#ated le#islation$ It ould be open to a clai!ant to challen#e the validity o" an a!ended provision in =udicial revie proceedin#s on all the #rounds available "or challen#in# dele#ated le#islation *ille#ality, irrationality and procedural i!propriety-$ The constitutional principle o" le#Bislative supre!acy o" Acts o" 'arlia!ent ould not be an i!pedi!ent to such a challen#e$ 64$ The dele#ation to %inisters by 'arlia!ent o" po ers to chan#e the statute boo1 has nonetheless beco!e a ell9established "eature o" the la 9 !a1in# process in this country$ Their routine use does not, ho ever, di!inish the constitutional oddity o" allo in# the execuBtive branch o" #overn!ent to set aside or a!end pri!ary le#islation previously consented to by 'arlia!ent$ The practical necessity "or such an arran#e!ent !ust be !atched by clearly li!ited po ers, to be exercised "or speci"ic purposes, and to be sub=ect to ade7uate

parliaB!entary oversi#ht *includin# a veto- to #uard a#ainst inappropriate use o" such po ers$ 6G$ The #eneral acceptability o" dele#atin# po ers to %inisters to chan#e the statute boo1 is no accepted ithin the United /in#do!Ms constitutional syste!$ The 7uestion in relation to the bill is there"ore hether %inisters should have po er to chan#e the statute boo1 "or the speci"ic purposes provided "or in the bill and, i" so, hether there are ade7uate procedural sa"e#uards to ensure that 'arlia!ent has e""ective oversi#ht and control over %inistersM le#Bislative po ers$ The :overn!entMs ori#inal proposals "or a po er to be used "or Jre"or!in# le#islationJ clearly "ailed this test$ The bill as introduced to the Louse o" Lords con"ers po Bers "or three speci"ic purposes3t o relatin# to better re#ulation and a third to i!ple!entaBtion o" La Co!!ission proposals$ ;$$$ < 'rohibit orders "ro! chan#in# constitutional "unda!entals G,$ Kro! the outset, concerns have been expressed that orders !ade under 'art + o" the bill !i#ht enable i!portant constitutional arran#e!ents to be altered,

deliberately or inadvertBently$ The ne clauses, "ocused on re#ulation, reduce the opportunities "or this to happen, thou#h the po ers related to La Co!!ission reco!!endations re!ain su""iciently ide to enable constitutional chan#e$ As e have noted, !inisterial underta1in#s are no substitute "or express le#islative clarity$ G6$ There are t o possible !ethods o" excludin# basic constitutional !atters "ro! the scope o" the bill$ 2ne is to list enact!ents o" a constitutional nature in respect o" hich !inisterial orders !ay not be !ade$ Such a list !i#ht include the "ollo in#& &Q INia#na Carta +,IF R 5ill o" Ri#hts +CDI R Cro n and 'arlia!ent Reco#nition Act +CDI &Q Act o" Settle!ent +FEE S Union ith Scotland Act +FEF ( Union ith Ireland Act +DEE 'arlia!ent Acts +I++94I 6 Li"e 'eera#es Act +IGD 9 E!er#ency 'o ers Act +IC4 ST European Co!!unities Act +IF, R Louse o" Co!!ons 8is7uali"ication Act +IFG R %inisterial and 2ther Salaries Act +IFG S 5ritish Nationality Act +ID+ o Supre!e Court Act +ID+ U

Representation o" the 'eople Act +ID6 U :overn!ent o" 4ales Act +IID U Northern Ireland Act +IID U Scotland Act +IID U Louse o" Lords Act +III$ G4$ Since that list as dra n up3by the >oint Co!!ittee on the dra"t Civil Contin#encies 5ill, as le#islation in respect o" hich po ers to !odi"y or disapply le#islation under the ter!s o" that bill should not apply3"urther le#islation o" a constitutional nature has been enacted$ 2ne !ay there"ore add& V Constitutional Re"or! Act ,EEG 9 E7uality Act ,EEC O Identity Cards Act ,EEC W Racial and Reli#ious Latred Act ,EEC GG$ There are a nu!ber o" practical di""iculties ith this approach o" si!ply listin# Acts o" 'arlia!ent$ It !ay not be possible to a#ree on hether a particular Act is JconstitutionalJ$ It is also so!ethin# o" a blunderbuss approach& there are provisions in so!e o" these Acts hich are not JconstitutionalJ and it !i#ht be thou#ht ron# to exclude such provisions "ro! the #eneral operation o" the bill$

GC$ An alternative !ethod o" see1in# to protect basic constitutional arran#e!ents "ro! a!end!ent or abolition by order ould be not to set out a list o" statutory provisions but to enu!erate those constitutional arran#e!ents$ A list o" such arran#e!ents !i#ht include& W the po ers o" and succession to the Cro n( W the po ers and co!position o" either Louse o" 'arlia!ent( W the basis o" election or appoint!ent o" %e!bers o" either Louse o" 'arlia!ent( W the duration o" 'arlia!ents( W the appoint!ent, po ers, duties and obli#ations o" =ud#es or !a#istrates o" any court( W the devolution settle!ents in Northern Ireland, Scotland and 4ales( W the establish!ent or disestablish!ent o" any church or reli#ion( W the arran#e!ents "or local #overn!ent( W the "unda!ental ri#hts and "reedo!s o" those livin# in the United /in#do!, includin# ri#hts under the European Convention on Lu!an Ri#hts,

the ri#ht to =ury trial, the ri#ht not to be detained ithout char#e, ri#hts concernin# nationality or i!!i#ration status and the conditions under hich any person !ay be extradited "ro! the United /in#do!( V the la relatin# to "reedo! o" in"or!ation, data protection, the re#ulation o" investi#atory po ers, the po ers and or#anisation o" the police and the po ers and or#anisation o" the security services$ GF$ In our uncodi"ied constitution, identi"yin# constitutional le#islation and constitutional arran#e!ents is not entirely strai#ht"or ard$ Kar "ro! detractin# "ro! the point o" princiBple that a !inisterial order is not an appropriate !ethod o" brin#in# about constitutional re"or!, this rein"orces the case "or the co!!ittees to have a veto on orders o" !a=or i!portance$

:ovt re"use to restrict the to exe!pt the a!end!ent o" constitutional i!portance Act as there are su""icient chec1s and balances The go'ernment re<e#ted arg"ments that the -enr% FIII power sho"ld $e restri#ted, to exempt amendments to A#ts o #onstit"tional importan#e *although, as already noted, it conceded that the power should not apply to the 200 Act itself or the !uman "ights Act #$$%-$ In !any ays, the Legislati'e and 2eg"lator% 2e orm A#t 6779 shows (arliament at its most e e#ti'e in s#r"tiniDing go'ernment& there as a great deal o #ross/part%, nonKpartisan working, and de$ates on the loor o" both Louses ere made more e e#ti'e $% timel% reports rom sele#t #ommittees$ All the !ore ironic , then, that hat pro!pted this unusually stron# parlia!entary action as a 5ill that *accordin# to !any critics- sou#ht to deprive 'arlia!ent o" !uch o" its le#islative po er$

I 3ON3L*DING 3O11ENTS This chapter has exa!ined ho dele#ated le#islation is !ade, and the ays in hich it is s#r"tiniDed $% (arliament and the #o"rts+ Chapter +, !oves on to explore ho le#islation is !ade in the European Union$

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