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

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3.4 Advantages and disadvantages of using delegated legislation

There are both advantages and disadvantages in using delegated legislation. For its critics, the growth in such legislation is however making law less accessible – something that goes against the rule of law. There are a growing number of calls for review, as some observers argue the current system is creaking. Box 4 outlines reasons put forward by the Hansard Society for change.

Box 4 The need for change

According to a blog written by the Hansard Society:

  • The delegated legislation process is no longer fit for purpose. The way in which Parliament deals with delegated powers is neither systematic nor consistent. The Hansard Society’s research shows that too much of the process relies on ‘gut feeling’ and ‘judgement’ rather than objective criteria.
  • An incremental approach to reform has created a patchwork of procedures, resulting in a system of scrutiny that is overly complex and confusing and often illogical.
  • The language – ‘made’ and ‘laid’, ‘negative’, ‘affirmative’, and ‘super affirmative’, ‘prayers’ and ‘Henry VIII powers’ – is confusing and undermines parliamentary and public understanding of the legislation. Many parliamentarians openly admit they don’t understand them.
  • Further patchwork reform risks making the situation worse. It is impossible to separate consideration of delegated legislation from that of primary legislation. The issues are now so serious that an independent expert inquiry is needed to review the entire legislative process looking at:
    • How both primary and delegated legislation is prepared in Whitehall and scrutinised at Westminster.
    • Issues of principle and practice, and where the balance should lie between administrative and political convenience and good legislative process.
    • Rationalisation of scrutiny procedures – exploring what criteria and principles define what members want to look at again in the area of delegated legislation and how this can best be achieved.
    • Whether the burden on Members to scrutinise delegated legislation should be reduced through the introduction of individuals or independent advisory bodies with genuine technical expertise in particular policy areas.
    • Whether the scrutiny system should be re-designed so that the greater burden of technical scrutiny work falls on the House of Lords in future.
Blackwell, J. (2015)

Unlike primary legislation, delegated legislation is not subject to judicial review.

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