Tag: statutory instruments
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Joe Tomlinson, Lewis Graham, and Alexandra Sinclair: Does judicial review of delegated legislation under the Human Rights Act 1998 unduly interfere with executive law-making?
The relationship between delegated legislation and the Human Rights Act 1998 (HRA) is seemingly becoming a more contentious constitutional issue. Professor Richard Ekins published, as part of the Policy Exchange’s Judicial Power Project, an agenda for constitutional reform under the title of Protecting the Constitution. Amongst an extensive set of reform suggestions, Ekins proposes that…
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Alexandra Sinclair and Joe Tomlinson: Brexit Delegated Legislation: Problematic Results
When Bills containing broad delegated law-making powers are making their way through Parliament, concerns are often expressed about the constitutional propriety of providing such powers. Typically, it is the lesser forms of participation and scrutiny afforded to delegated legislation that animate such anxieties. There are many examples of this in recent years from across a…
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Adam Tucker: A First Critical Look at the Scrutiny of Delegated Legislation in the Withdrawal Agreement Bill
In this post, I make a preliminary attempt at assessing the provision made in the EU (Withdrawal Agreement) Bill – or WAB – for the scrutiny of the legislative powers which it delegates to the executive. My conclusions are not positive. The scrutiny procedures it seeks to enact are inadequate – so inadequate that it…
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Alexandra Sinclair and Joe Tomlinson: Making Parliamentary Accountability Effective: Prorogation, No Deal Brexit, and Statutory Instruments (Part 3)
Unless you have been living in a nuclear bunker, you will know that the UK Supreme Court held in R (on the Application of Miller) v The Prime Minister that the decision to prorogue Parliament was unlawful. This was because the prorogation had the effect of ‘preventing, without reasonable justification, the ability of Parliament to…
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Jeff King: Miller/Cherry and Remedies for Ultra Vires Delegated Legislation
The issue of remedies for any finding that the 2019 prorogation of the UK Parliament is unlawful is presently under discussion in pleadings in the joined appeals of Miller No.2 and Joanna Cherry MP (and others) in the Supreme Court. Essentially, the question concerns what must occur if the minister’s advice is found unlawful, and…
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Alexandra Sinclair and Joe Tomlinson: Eliminating Effective Scrutiny: Prorogation, No Deal Brexit, and Statutory Instruments (Part 2)
Last week, we posted an analysis of the position vis-à-vis Brexit legislation, both primary and delegated, in view of the Government’s prorogation decision. In that post, we set out a range of likely consequences, which are now beginning to come to fruition. As regards primary legislation, only three carry over motions were passed for eligible…
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Alexandra Sinclair and Joe Tomlinson: Eliminating Effective Scrutiny: Prorogation, No Deal Brexit, and Statutory Instruments
The decision to prorogue Parliament does not only have implications for whether Parliament can prevent a no deal Brexit, it also has important consequences for the making of primary and secondary legislation prior to exit day. We are particularly concerned with statutory instruments (SIs). There is already a strained position vis-à-vis the lack of scrutiny…
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Alexandra Sinclair and Joe Tomlinson: Brexit, Primary Legislation, and Statutory Instruments: Everything in Its Right Place?
Legislation to enable Brexit is progressing through Parliament. This includes the Immigration and Social Security Bill, the Fisheries Bill, the Financial Services (Implementation of Legislation) Bill, and the Healthcare (International Arrangements) Bill. One curious aspect of this raft of new law is that, at the same time these Bills are making their way through Parliament,…
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Alexandra Sinclair and Joe Tomlinson: Deleting the Administrative State?
A key public law discussion in recent months concerns the vast number of statutory instruments (SIs) government is using to implement Brexit. Initially, it was said by government that c.800-1,000 SIs were required. That estimate has now been revised down to c.600 (while the estimated number of SIs has decreased the size of individual SIs…
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Lorne Neudorf: Scrutinising Legislative Reform Orders: The Case of the Horserace Betting Levy
On Wednesday, 21 November, the House of Lords Delegated Powers and Regulatory Reform Committee (the ‘Lords Committee’) held a unique concurrent meeting with the House of Commons Regulatory Reform Committee (the ‘Commons Committee’) to take evidence as part of its scrutiny of a draft Legislative Reform Order (‘LRO’) entitled the Legislative Reform (Horserace Betting Levy)…