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

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3.2 Reflection on subordinate legislation in the Scottish and UK Parliaments

The use of subordinate legislation is increasing. As you have learnt procedures for scrutiny differ between the UK and Scottish Parliaments. Activity 2 asks you to think about subordinate legislation and some of the concerns over its use.

Activity 2 Use or abuse? Thinking about delegated legislation

Timing: Allow about 20 minutes

Delegated legislation is a complex area. Take a few minutes to reflect on what you have learnt and then answer the following questions.

  1. Where do the powers to make delegated legislation come from?
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Comment

The powers to make delegated legislation can be found in the primary Act. That Act will specify what powers have been delegated and to whom.

  1. Are other terms used as an alternative to delegated legislation?
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Comment

Delegated legislation is also referred to as secondary or subordinate legislation. Both the terms ‘secondary’ and ‘subordinate’ indicate that they are subject to something – in this case, the primary Act of Parliament.

  1. What procedures exist to scrutinise delegated legislation?
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Comment

There are procedures in both the Scottish and UK Parliaments. There are two procedures in the Scottish Parliament, the affirmative and negative procedures. The affirmative procedure requires parliamentary consideration. In the UK Parliament there are three procedures, affirmative, negative and strengthened scrutiny.

  1. Legislation applicable to Scotland may be made by both the Scottish Parliament (on devolved matters) and the UK Parliament (on reserved matters). To find the applicable law on a topic you may need to research both primary and delegated legislation made by either Parliaments. The delegated legislation may not have received much scrutiny. Take a few moments and identify three issues you think this may raise and why.
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Comment

There is growing criticism of law making using delegated legislation. The issues you identified will reflect your viewpoint and views on law making in this way. There was no right or wrong answer to this question. It was designed to make you stop and think about what you had read, identify issues, reasons why you think they are issues and then note them. Accessibility may have struck you as one issue: if there was so much law how do you find it and navigate a way through it to find the answer to a question? And does this, in turn, mean that Ministers (whether of the Scottish or UK Government) are delegated a great deal of power with little scrutiny of how that power is used? Finally, there is no process for reviewing whether the delegation was effective and there is usually no stated point at which the power ends.

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