Lorne Neudorf: The Constitutional Position of Delegated Legislation after Cherry/Miller (No 2)


Following the highly anticipated decision of the UK Supreme Court in Cherry/Miller (No 2), commentators have weighed in on some of the implications of this ground-breaking judgment. This post considers what the judgment has to say about the constitutional position of delegated legislation.

Delegated legislation matters. Over time, it has become the most significant source of law in the contemporary legal system. By both quantity and volume, delegated legislation greatly outpaces primary legislation. In the year 2015, prior to the making of European Union withdrawal regulations, 2058 statutory instruments were made by the executive as compared to 69 primary statutes passed by Parliament. Although some instruments are relatively short, others resemble primary legislation in both length and form. Adam Tucker has described delegated legislation as the “central form of legislation in the contemporary constitution”.

While the technical details of laws are often delegated by Parliament to the executive for good reasons, important policy choices may also be made through delegated legislation. In addition, many new bills introduced in Parliament include Henry VIII clauses, which empower the executive to directly amend primary legislation.

The integrity of the process by which laws are made is connected to the legitimacy of the law, and there is good reason to be concerned about the transparency and accountability of the delegated law-making process. Delegated legislation is made quickly, outside of Parliament and its traditional safeguards of three readings, open debate, committee study with input from stakeholders, a public recorded vote and media attention. While the judicial review of delegated legislation on administrative law grounds is available as an important check on executive law-making (although sometimes with very short time limits), it is no substitute for the robust systematic scrutiny of delegated legislation.

In the UK, scrutiny mechanisms consider both the technical aspects and policy implications of delegated powers and delegated legislation. This includes the important work of committees such as the Lords Delegated Powers and Regulatory Reform Committee, the Joint Committee on Statutory Instruments and the Lords Secondary Legislation Scrutiny Committee, among other parliamentary controls. These committees are essentially Parliament’s advisors when it comes to the propriety of delegated legislation and are usually the only real point of contact for Parliament in the process of making delegated legislation. Notably, the European Union (Withdrawal) Act 2018 delegates exceptionally broad legislative powers to the executive, calling for even closer parliamentary scrutiny to ensure these powers are exercised appropriately.

The question is whether delegated legislation can engage constitutional principle. I have previously argued that as the constitutional source of legislative power, Parliament bears a special responsibility to effectively supervise executive law-making. Given its position, Parliament should be expected to play a meaningful role in the law-making process. It must not be forgotten that delegation is essentially a loan of Parliament’s law-making powers, subject to recall at any time. Supervision of executive legislation by Parliament is therefore important not only as good practice to promote quality legislation but also as part of executive accountability to Parliament for legislative choices that have been made.

In Cherry/Miller (No 2), the Supreme Court drew on two fundamental constitutional principles to decide whether the Prime Minister’s advice to prorogue Parliament was lawful. The first was the constitutional cornerstone of parliamentary sovereignty. The Court noted that sovereignty extended beyond the mere recognition of primary legislation as the supreme law. It more broadly included the protection of Parliament as an institution and its legislation from being undermined by the executive. The second was parliamentary accountability, which required the maintenance of responsible government through parliamentary mechanisms that hold the executive to account. While the Court then applied these principles to the prerogative power, it also noted that they had been applied in other cases involving delegated legislation to establish limits on the scope of executive law-making authority.

In considering if the prorogation advice was unlawful, the Court considered whether it frustrated or prevented Parliament from carrying out its legislative functions and its supervision of the executive without reasonable justification. Finding that it was unlawful, the Court noted that the unusually long prorogation period at issue prevented Parliament from performing its functions. Among other things, these functions included:

… special procedures for scrutinising the delegated legislation necessary to make UK law ready for exit day and achieve an orderly withdrawal with or without a withdrawal agreement, which are laid down in the European Union (Withdrawal) Act 2018. Scrutiny committees in both the House of Commons and the House of Lords play a vital role in this.

In my view, Cherry/Miller (No 2) is a welcome restatement of the judicial use of constitutional principles to limit the scope of the executive’s delegated law-making powers. Perhaps more importantly, the judgment also highlights the essential work that parliamentary committees carry out in scrutinising delegated legislation (which of course is not just limited to Brexit regulations).  The Supreme Court can be seen to have grounded this work in constitutional norms. First, in terms of its sovereignty, Parliament must remain capable of controlling legislative power, including power which is on loan to the executive. Frustrating or preventing Parliament from controlling legislation impinges upon its role as lawmaker in chief. Second, in terms of parliamentary accountability, the tremendous importance of delegated legislation to the legal system demands the availability of effective parliamentary scrutiny. This scrutiny lies close to the core of accountability, and frustrating or preventing it risks running afoul of constitutional principle.

Lorne Neudorf is the Deputy Dean of Law and an Associate Professor at Adelaide Law School, University of Adelaide. He is currently carrying out a comparative research project examining the parliamentary scrutiny of delegated legislation in Australia, Canada, New Zealand and the United Kingdom. The support of the Social Sciences and Humanities Research Council of Canada is acknowledged.

(Suggested citation: L. Neudorf, ‘The Constitutional Position of Delegated Legislation after Cherry/Miller (No 2)‘, U.K. Const. L. Blog (27th Sept. 2019) (available at https://ukconstitutionallaw.org/))