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The Scottish Parliament and law making
The Scottish Parliament and law making

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3 The UK Parliament

Many UK-wide laws are also made by delegated legislation and do not go through the process set out in week 4. The term delegated legislation tends to be used more frequently when referring to the UK Parliament. As in the Scottish Parliament most delegated legislation is created as statutory instruments. Primary Acts set out the framework of powers delegated to Ministers or other bodies in the primary Act. Delegated legislation, mostly in the form of statutory instruments, is frequently used to supplement, provide detail, update and amend primary legislation. This can all be achieved without the UK Parliament having to pass a new Act.

Box 2 UK Parliament and delegated legislation

Delegated legislation is usually concerned with detailed changes to the law made under powers from an existing Act of Parliament. Statutory instruments form the majority of delegated legislation but rules or codes of practice can also be used.

What delegated legislation does

Delegated legislation allows the Government to make changes to a law without needing to push through a completely new Act of Parliament. The original Act (also known as primary legislation) would have provisions that allow for future delegated legislation to alter the law to differing degrees.

These changes range from the technical, like altering the level of a fine, to fleshing out Acts with greater detail; often an Act contains only a broad framework of its purpose and more complex content is added through delegated legislation.

Statutory instruments

Statutory instruments (SIs) are a type of delegated legislation. Approximately 3,000 SIs are issued each year, making up the bulk of delegated legislation. About two thirds of SIs are not actively considered before Parliament and simply become law on a specified date in the future.

SIs are normally drafted by the legal office of the relevant government department. Consultations often take place with interested bodies and parties.

The House of Lords Delegated Powers Scrutiny Committee

The Lords Delegated Powers Scrutiny Committee (established in 1992) keeps under constant review the extent to which legislative powers are delegated by Parliament to government ministers, and examines all Bills with delegating powers which allow SIs to be made before they begin their passage through the House. There is an informal understanding in the Lords that, when the Delegated Powers Committee has approved provisions in a Bill for delegated powers, the form of those powers should not normally be the subject of debate during the Bill's subsequent passage.

The House of Commons has no equivalent committee.

The House of Lords Secondary Legislation Scrutiny Committee (formerly the Merits Committee)

Established in 2003, the Lords Secondary Legislation Scrutiny Committee considers every negative and affirmative SI (or draft SI) laid before Parliament – about 1200 per year – with a view to determining whether the special attention of the House should be drawn to it on any of the following grounds:

  • that it is politically or legally important or gives rise to issues of public policy likely to be of interest to the House
  • that it may be inappropriate in view of the changed circumstances since the passage of the parent Act
  • that it may inappropriately implement EU legislation
  • that it may imperfectly achieve its policy objectives
  • that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation
  • that there appear to be inadequacies in the consultation process which relates to the instrument.

The Lords Secondary Legislation Scrutiny Committee reports every week, normally considering SIs written 12–15 days of being laid before the House.

Like the Lords Delegated Powers and Regulatory Reform Committee, the Lords Secondary Legislation Scrutiny Committee's role is to advise the House of Lords, and it is for the House to decide whether or not to act on the Committee's conclusions.

The House of Commons has no equivalent committee.

From the information in Box 2 you can see that the procedures used in the UK Parliament differ from those in the Scottish Parliament and are more complex. The House of Lords has a wide-ranging membership with experts (including former members of the judiciary with their legal expertise) drawn from many areas and scrutinises delegated legislation. The Select Committee of the House of Lords on the constitution (9th Session 2015-16) raised concerns over the use of delegated legislation, in particular that the role of Parliament in scrutinising legislation and challenging the government was being undermined.