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Delegating law-making powers to the executive
This is a single section from Chapter 13. Read the full chapter here.
Is the matter appropriate for delegated legislation?
Legislation should not authorise delegated legislation to be made in respect of matters which are appropriate for primary legislation.
As a general rule, matters of policy and principle should be included in primary legislation. Delegated legislation should deal with technical matters of implementation and the operation of the Act.
While valid reasons do exist for delegating a power to the executive, each decision to authorise the making of delegated legislation should be justified on its own merits.
Some matters, such as limiting fundamental human rights, are clearly appropriate only for primary legislation; but the decision will not always be clear-cut, and some matters may be appropriate for both primary and delegated legislation.
The following matters should ideally (or in some cases can only) be addressed in primary legislation:
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Delegated legislation should only be authorised when it is necessary to give effect to primary legislation. It is particularly useful in situations where the environment in which the legislation must operate is subject to frequent change or where flexibility is desired for some other reason.
The following may be appropriate for delegated legislation:
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|In limited cases, the setting of the commencement date may be delegated to the executive. Such provisions are likely to face additional RRC scrutiny and, as such, cogent reasons for the delegation must exist. The legislation should also incorporate a provision that the legislation is brought into effect automatically after a set period of no more than one year after its enactment, if not brought into force earlier by Order in Council. |
It will not be appropriate to authorise delegated legislation:
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