<<

. 86
( 155 .)



>>

for the Environment, Transport and the Regions, ex p Spath Holme Ltd [2001] 2 AC
349, 391“3, 407“8, and in Wilson v First County Trust Ltd [2003] UKHL 40,
[2004] 1 AC 816, [56]“[60], [139]“[140].
The Hansard Society Commission on the Legislative Process recommended
(Making the Law (1992), para 393) that the operation of major Acts should be
reviewed by parliamentary select committees two or three years after they come
into force. No such systematic post-legislative review of statutes is at present
undertaken, although in a few instances select committees have conducted
post-legislative scrutinies. (See eg, the report of the Northern Ireland A¬airs
Committee on the operation of the Fair Employment (Northern Ireland) Act
1989, HC 95-I of 1998“99, and the inquiry of the Education and Skills
Committee into the impact on students of the Higher Education Act 2004, HC
369-ii of 2004“05.) Some legislation provides for post-enactment scrutiny to be
conducted by specially appointed reviewers: the terrorism legislation is an
example (the annual reports on the operation of the Terrorism Act 2000 and
related legislation are available from http://security.homeo¬ce.gov.uk). Post-
legislative review is more systematically undertaken by the Scottish Parliament
(recent years, for example, have seen committees of the Scottish Parliament
review the operation of the Transport (Scotland) Act 2001, the Housing
(Scotland) Act 2001, the Protection from Abuse (Scotland) Act 2001, the
Regulation of Care Act 2001 and the Community Care and Health Act 2002,
among others). The Law Commission concluded in October 2006 (Post-
Legislative Scrutiny, Cm 6945, Law Com 302) that there is a ˜strong case for more
systematic post-legislative scrutiny™ (para 2.24) and recommended that ˜con-
sideration be given to the setting up of a new parliamentary joint committee on
post-legislative scrutiny™ (para 3.47).
There is more that can be demanded of legislation than that it should
e¬ectively implement the government™s policy. A requirement of principle was
expressed as follows by Sir John Donaldson MR in Merkur Island Shipping
Corpn v Laughton [1983] 2 AC 570, 594“5 (with particular reference to the
Trade Union and Labour Relations Act 1974, the Trade Union and Labour
Relations (Amendment) Act 1976 and the Employment Act 1980):

At the beginning of this judgment I said that whilst I had reached the conclusion that the
law was tolerably clear, the same could not be said of the way in which it was expressed.
The efficacy and maintenance of the rule of law, which is the foundation of any
parliamentary democracy, has at least two pre-requisites. First, people must understand
that it is in their interests, as well as in that of the community as a whole, that they should
445 The powers of government


live their lives in accordance with the rules and all the rules. Second, they must know what
those rules are. Both are equally important and it is the second aspect of the rule of law
which has caused me concern in the present case. . . .
In industrial relations it is of vital importance that the worker on the shop floor, the shop
steward, the local union official, the district officer and the equivalent levels in management
should know what is and what is not ˜offside™. And they must be able to find this out for
themselves by reading plain and simple words of guidance. The judges of this court are all
skilled lawyers of very considerable experience, yet it has taken us hours to ascertain what
is and what is not ˜offside™, even with the assistance of highly experienced counsel. This
cannot be right.
We have had to look at three Acts of Parliament, none intelligible without the other. We
have had to consider section 17 of the Act of 1980, which adopts the ˜flow™ method of Parli-
amentary draftsmanship, without the benefit of a flow diagram. We have furthermore been
faced with the additional complication that subsection (6) of section 17 contains definitions
which distort the natural meaning of the words in the operative subsections. . . . But I do not
criticise the draftsman. His instructions may well have left him no option. My plea is that
Parliament, when legislating in respect of circumstances which directly affect the ˜man or
woman in the street™ or the ˜man or woman on the shop floor™ should give as high a priority
to clarity and simplicity of expression as to refinements of policy. Where possible, statutes,
or complete parts of statutes, should not be amended but re-enacted in an amended form
so that those concerned can read the rules in a single document. When formulating policy,
ministers, of whatever political persuasion, should at all times be asking themselves and
asking parliamentary counsel: ˜Is this concept too refined to be capable of expression in basic
English? If so, is there some way in which we can modify the policy so that it can be
expressed?™ Having to ask such questions would no doubt be frustrating for ministers and
the legislature generally, but in my judgment this is part of the price which has to be paid
if the rule of law is to be maintained.

(See also the remarks of Lord Diplock in the House of Lords [1983] 2 AC 570,
612 and the example o¬ered by P Cowley, The Rebels: How Blair Mislaid his
Majority (2005), pp 29“34.)


(b) Delegated legislation
Putting aside an exceptional and very limited power of legislation under the
prerogative (below), the executive can legislate only if authorised to do so by
Parliament. Many Acts of Parliament confer power upon the administration
to legislate for speci¬ed purposes. In formal constitutional terms Parliament
as supreme law-giver delegates a circumscribed portion of legislative compe-
tence to a minister of the Crown or other public authority. The reality is that
the government, in drawing up a bill for enactment by Parliament, decides
how much detailed regulation of the subject matter to include in the bill itself,
and what powers to keep in its own hands for carrying out the purposes of
the bill.
446 British Government and the Constitution


The delegation of legislative power by Parliament to the Sovereign or to ad
hoc authorities was known in Tudor times and even earlier, but the expansion
of governmental activity in the nineteenth and twentieth centuries brought
about a great increase in delegated legislation. By the 1930s the number of
departmental regulations issued annually was ¬fteen or twenty times that of
Acts passed by Parliament. This abundant production of law by agencies other
than Parliament was viewed by some with an exaggerated alarm as a triumph
of bureaucracy over the constitution (eg Lord Hewart, The New Despotism
(1929)). Others, like Harold Laski (Parliamentary Government in England
(1938), p 216), recognised that:

It would be foolish for Parliament to waste its time legislating separately upon applications
or extensions of general principles about which it has already legislated. To say, for example,
that a poison is a substance declared to be such by the Home Office in consultation with the
Pharmaceutical Society is, under proper safeguards, infinitely more sensible than for the
Cabinet to ask Parliament for a separate statute on each occasion when it is desirable to
restrict the sale of some chemical substance on the ground of its poisonous nature.

The government responded to criticism of the practice of delegated legisla-
tion (and the vesting of judicial and quasi-judicial powers in ministers) by
setting up the Committee on Ministers™ Powers (Donoughmore Committee)
which reported in 1932. The Committee expressed its general conclusion on the
subject of delegated powers in saying (Cmd 4060, pp 4“5):

We do not agree with those critics who think that the practice is wholly bad. We see in it
definite advantages, provided that the statutory powers are exercised and the statutory func-
tions performed in the right way. But risks of abuse are incidental to it, and we believe that
safeguards are required, if the country is to continue to enjoy the advantages of the practice
without suffering from its inherent dangers.

The Committee added:

But in truth whether good or bad the development of the practice is inevitable.

It went on to give reasons why the delegation of legislative powers was necessary
(pp 51“2). The reasons were restated, as follows, in 1967.

Select Committee on Procedure, Sixth Report, HC 539 of 1966“67,
Appendix 8: Memorandum by Mr Speaker™s Counsel, para 6

The advantages and justifications of delegated legislation may be summarised as follows:

(a) The normal justification is its value in relieving Parliament of the minor details of law
making. The province of Parliament is to decide material questions affecting the public
447 The powers of government


interest; and the more procedure and subordinate matters can be withdrawn from their
cognizance the greater will be the time afforded for the consideration of more serious
questions involved in legislation.
(b) Another advantage is speed of action. Action can be taken at once in a crisis without
public notice which might prejudice the object of the exercise. For instance an increase
in import duties would lose some of its effect if prior notice was given and importers
were able to import large quantities of goods at the old lower rate of duty.
(c) Another advantage is in dealing with technical subjects. Ministers and Members of
Parliament are not experts in the variety of subjects on which legislation is passed eg
trade marks, patents, designs, diseases, poison, legal procedure and so on. The details
of such technical legislation need the assistance of experts and can be regulated after a
Bill passes into an Act by delegated legislation with greater care and minuteness and
with better adaptation to local and other special circumstances than they can be in the
passage of a Bill through Parliament.
(d) Another is that it enables the Department to deal with unforeseen circumstances that
may arise during the introduction of large and complicated schemes of reform. It is not
possible when drafting legislation on a new subject, to forecast every eventuality and it
is very convenient to have power to adjust matters of detail by Statutory Instrument
without of course going beyond the general principles laid down in the Bill.
(e) Another is that it provides flexibility. Circumstances change and it may be desirable to take
power to deal quickly with changing circumstances rather than wait for an amending Bill.
[A recent instance was the Electronic Communications Bill, providing for delegation of
powers ˜to ensure flexibility in a field where the technology is changing rapidly in ways
which cannot be anticipated at present™: Select Committee on Delegated Powers and
Deregulation, Fifth Report, HL 30 of 1999“2000, Memorandum by the DTI, p 5, para 4.]
(f) Finally, there is the question of emergency; and in time of war it is essential to have
wide powers of delegated legislation.


The Cabinet O¬ce has outlined the factors to be considered in deciding
whether provision should be made in a bill for the delegation of legislative
power.


Cabinet Office, Guide to Legislative Procedures (2004), para 8.18

Matters of detail are often set out in Schedules to a Bill; or they may be left over to be dealt
with by statutory regulations or other forms of subordinate legislation. The following are
some of the points which Parliamentary Counsel and the departments may need to take into
account in preparing the Bill:

• the matters in question may need adjusting more often than it would be sensible for
Parliament to legislate for by primary legislation;
• there may be rules which will be better made after some experience of administering the
new Act and which it is not essential to have as soon as it begins to operate;
448 British Government and the Constitution


• the use of delegated powers in a particular area may be well precedented and un-
controversial;
• there may be transitional and technical matters which it would be appropriate to deal with
by delegated powers.

On the other hand,

• the matters, though detailed, may be so much of the essence of the Bill that Parliament
ought to consider them along with the rest of the Bill;
• the matters may raise controversial issues running through the Bill which it would be
better for Parliament to decide once in principle rather than arguing several times over
(and taking up scarce Parliamentary time in so doing);
• Parliament will take a close interest in the nature and extent of Parliamentary control over
subordinate legislation, so careful consideration should be given to this question.

The complex activity of a modern industrial society necessitates a far-
reaching governmental regulation in the interests of public safety, health and
welfare. Much of this regulation is carried out by means of the numerous
powers of delegated legislation committed to the government, which each year
acts upon these powers in issuing some 1,500 instruments (of the kind that are
subject to parliamentary procedure: other, less important, instruments are
issued which are exempt from parliamentary control procedures). Although
delegated legislation is an executive function, it is subject to a measure of
parliamentary supervision and to a check of another sort in the processes of
consultation with outside interests. (See further below.) A balanced modern
view of delegated legislation is given in the following passage.

SA Walkland, The Legislative Process in Great Britain (1968), pp 16“18

[A]lthough there have been many encomiums on the Public General Act as a legislative
device, there has been a curious reluctance to recognize the legitimacy and permanence of
Departmental legislation as the main twentieth-century vehicle of legislative regulation.
Partly because the Public General Act was identified with the ˜rule of law™ (although much
that has been done by its agency would not have met with Dicey™s approval), and, to the
same extent, supported formal-legal concepts of the legislative sovereignty of Parliament,
it has been regarded as the normal end-product of the legislative process, from which
Ministerial legislation is a distinctly inferior, temporary derogation, suspected by right-wing
lawyers, at least, of containing the seeds of the overthrow of responsible government in
Britain. . . .
. . . [D]espite the rapid growth in the volume of subordinate legislation and its importance
in the regulatory roles of government, official enquiries into the place of statutory powers
to make regulations in the legislative process have never directly recognized their potential.
Instead the investigations have been almost entirely negatively conceived, concerned mainly
with confining the scope of the process and improving judicial and Parliamentary controls
449 The powers of government


over it. This was particularly true of the 1932 Committee on Ministers™ Powers, whose
attempts at a formal and outdated analysis of governmental processes led it into semantic
confusion, which together with its suspicious approach to the subject-matter of the enquiry,
set the pattern for much subsequent discussion of delegated legislation. . . .
Much of the suspicion of delegated legislation is aroused by the fact that civil servants
are intimately associated with its procedures, and that the opportunities for participation
in the process by representative and politically responsible members of the House of
Commons are necessarily limited. . . . It may be that the civil service, with its ability to
evade immediate political responsibility, is unfitted to carry the sole weight of public poli-
cies which are matters of political dispute, or which are likely to bear very heavily on sec-
tions of the public. But charges of remoteness from some sections of public opinion and of
inaccessibility must give way when the extent of consultation by the civil service with orga-
nized groups and its ability to have recourse to a vast network of advisory committees is
taken into account.
As a result, whilst legislative procedure in Parliament has been relatively static for some
time, the Departmental phase of the modern legislative process has seen considerable
technical advances, which have had the result of introducing a marked degree of procedural
flexibility and sensitivity into legislative rule-making by administrative agencies. Of these,
the most widespread and influential procedure is the informal consultation with interests in
the making of subordinate legislation.


The Hansard Society Commission on the Legislative Process concluded
that, on balance, ˜the main advantages of making greater use of delegated leg-
islation outweigh the very real disadvantages™, having regard in particular to
the desirability of keeping primary legislation ˜as clear, simple and short as
possible™ (Making the Law (1992), paras 262“3). The greater ¬‚exibility of
delegated legislation may, however, dispose a government to proceed in this
way even when the subject matter is of an importance that demands the fuller
parliamentary scrutiny applied to primary legislation. There have been
complaints that issues of policy and principle, instead of being included in the
bill and submitted to Parliament, are left to be settled by ministers in delegated
legislation (see above). Lord Simon of Glaisdale has spoken in this connection
of an aggrandisement of the executive at the expense of Parliament, citing the
Child Support Act 1991 which delegated over 100 regulation-making powers
to ministers (HL Deb vol 533, col 747, 11 December 1991). The Procedure
Committee concluded in 1996 that there was ˜too great a readiness in
Parliament to delegate wide legislative powers to Ministers, and no lack of
enthusiasm on their part to take such powers™ (Fourth Report, HC 152 of
1995“96, para 14. This conclusion was endorsed by the Procedure Committee

<<

. 86
( 155 .)



>>