Delegated legislation: A cautionary tale from the United Kingdom
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The contents of this portion of the lecture relate to those of the previous portion
more directly than may be apparent. Statutory bulk leads, it seems, to unbridled
pragmatism. On a recent visit to the United Kingdom, I was briefed by First
Parliamentary Counsel and the Law Commission in England on the Legislative
and Regulatory Reform Bill. This Bill makes provision for reforming legislation
on a wide scale and implementing recommendations of the United Kingdom Law
Commissions. It was introduced on 11 January 2006.
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The breadth of the measure can best be understood by quoting its purpose clause,
clause 1(1):28
A Minister of the Crown may by order make provision for either or both of the
following purposes
(a)
Reforming legislation;
(b)
Implementing recommendations of any one or more of the United Kingdom
Law Commissions, with or without changes.
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In effect, this is law-making by delegated legislation. There may be a case for
dealing with recommendations of the Law Commissions in the manner suggested,
but I do not advocate it.29 It is even more difficult to see the case for reforming
legislation on a broad front by way of delegated legislation.30 The powers under
this Bill could also be used to amend itself.
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The Bill contains a number of checks and balances against invoking the
procedure. There are a number of pre-conditions set out on exercise of the power.
Indeed, satisfaction of these conditions may make judicial review on the exercise
· Government departments and agencies, Ministers and Members of Parliament
responsible for the development and enactment of new legislation, and those
who make submissions on Bills.
28
Legislative and Regulatory Reform Bill 2006 (UK) cl 1(1).
29
Geoffrey Palmer and Matthew Palmer Bridled Power: New Zealands Constitution and
Government (4 ed, Oxford University Press, Oxford, 2004), ch 11 Regulations and Red
Tape, 202227; see also Michael Taggart From Parliamentary Powers to Privatisation:
The Chequered History of Delegated Legislation in the Twentieth Century (2005) 55 U
Toronto LJ 575; and Caroline Morris and Ryan Malone Regulations Review in the New
Zealand Parliament (2004) Macquarie LJ 7.
30
Michael Taggart, above n 29.
22