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

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3.3 The expansion of regulation

The increase in delegated legislation is an indicator of the growing complexity of society. The expansion of regulation, the wide range of social security provision and the wide range of tax provisions, the rapidly changing nature of technology, the growth in delegation of powers to local authorities and councils, use of the internet, the growth in technical detail required and the complexity of a 21st century society have all contributed to a significant increase in the volume, technicality and complexity of delegated legislation.

Activity 3 A need for reform?

Timing: Allow about 10 minutes

Look at the following list and indicate whether you class the statement as support for, or a criticism of, delegated legislation:

Support for delegated legislation Criticism of delegated legislation
Supervising delegated legislation is very difficult.
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Publication takes place but few people may be aware that the delegated legislation exists and where to find it.
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Most individuals do not know on what ground you can challenge delegated legislation or how to go about it.
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Some enabling Acts can be ambiguous and can therefore be open to wide interpretation.
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Great power may be given to Ministers. The enabling Act might include a phrase like ‘the minister may make such regulations as he sees fit for the purpose of bringing the Act into operation’.
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Relieves pressure on parliamentary time so that Parliament can concentrate on important laws, rather than technicalities.
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Delegated legislation can be created more easily and quickly.
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Delegated legislation can be drafted by experts in the field.
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Delegated legislation can be made at any time, whereas Acts need to be timetabled.
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Parliament has insufficient time to scrutinise it.
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Delegation of powers causes complexity and confusion.
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Sheer volume causes complexity – it is impossible keep abreast of all delegated legislation (an average of 4,000 and more a year between both Parliaments).
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Lack of publicity for, and consultation on, delegated legislation.
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Undemocratic: most delegated legislation is drafted by civil servants.
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Henry VIII clauses can give power to amend or repeal Acts of the UK Parliament.
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Saves limited time in Parliament allowing for more detailed debates on policy and other matters.
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MPs and MSPs often lack detailed or technical knowledge.
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Enables a quick response to new developments, crises or emergencies.
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Enables minor changes to statutes, for example variations in sentences and approval of motor vehicle changes.
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There is a fear that Ministers are increasingly seeking to use SIs rather than Bills to achieve their policy objectives as these receive much less scrutiny than primary legislation.
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Delegated legislation takes up less parliamentary time.
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Traditionally, the justifications for using delegated legislation have been the need to elaborate complex and technical detail that cannot be easily done on the face of a Bill.
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Delegated legislation enables flexibility and adaptability.
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The system of delegated legislation has been predicated on its reasonable use and application by Ministers coupled with trust in the Parliaments ’ systems of scrutiny.
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Delegated legislation is now being used for administrative convenience and often in circumstances where governments have not fully pinned down the detail of policy proposals.
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Delegated legislation can be found to justify almost any form of delegation a minister might now desire.
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Words: 0
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Comment

Support for delegated legislation Criticism of delegated legislation
Supervising delegated legislation is very difficult.Yes
Publication takes place but few people may be aware that the delegated legislation exists and where to find it.Yes
Most individuals do not know on what ground you can challenge delegated legislation or how to go about it.Yes
Some enabling Acts can be ambiguous and can therefore be open to wide interpretation.Yes
Great power may be given to Ministers. The enabling Act might include a phrase like ‘the minister may make such regulations as he sees fit for the purpose of bringing the Act into operation’.Yes
Relieves pressure on parliamentary time so that Parliament can concentrate on important laws, rather than technicalities.Yes
Delegated legislation can be created more easily and quickly.YesYes
Delegated legislation can be drafted by experts in the field.Yes
Delegated legislation can be made at any time, whereas Acts need to be timetabled.YesYes
Parliament has insufficient time to scrutinise it.Yes
Delegation of powers causes complexity and confusion.Yes
Sheer volume causes complexity – it is impossible keep abreast of all delegated legislation (an average of 4,000 and more a year between both Parliaments).Yes
Lack of publicity for, and consultation on, delegated legislation.Yes
Undemocratic: most delegated legislation is drafted by civil servants.Yes
Henry VIII clauses can give power to amend or repeal Acts of the UK Parliament.Yes
Saves limited time in Parliament allowing for more detailed debates on policy and other matters.Yes
MPs and MSPs often lack detailed or technical knowledge.YesYes
Enables a quick response to new developments, crises or emergencies.Yes
Enables minor changes to statutes, for example variations in sentences and approval of motor vehicle changes.Yes
There is a fear that Ministers are increasingly seeking to use SIs rather than Bills to achieve their policy objectives as these receive much less scrutiny than primary legislation.Yes
Delegated legislation takes up less parliamentary time.Yes
Traditionally, the justifications for using delegated legislation have been the need to elaborate complex and technical detail that cannot be easily done on the face of a Bill.Yes
Delegated legislation enables flexibility and adaptability.Yes
The system of delegated legislation has been predicated on its reasonable use and application by Ministers coupled with trust in the Parliaments ’ systems of scrutiny.Yes
Delegated legislation is now being used for administrative convenience and often in circumstances where governments have not fully pinned down the detail of policy proposals.Yes
Delegated legislation can be found to justify almost any form of delegation a minister might now desire.Yes

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