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Delegating law-making powers to the executive
This is a single section from Chapter 13. Read the full chapter here.
Does the legislation authorise “incorporation by reference”?
Incorporation by reference should only be used where it is impractical to do otherwise.
Incorporation by reference refers to creating or defining rights, powers and obligations by a reference in primary or delegated legislation to another document (possibly prepared by someone outside government), or part of a document, the provisions of which are not set out in legislation.
Incorporation by reference might be appropriate where:
- the document is long or complex, covers technical matters only, and few people are likely to be affected;
- the document has been agreed with one or more foreign governments, cannot easily be recast into an Act of Parliament or delegated legislation, and deals only with technical or operational details of a policy already approved by Parliament;
- it is appropriate for the document to be formulated by a specialist government or inter-governmental agency or private sector organisation, rather than by Parliament or Ministers;
- the document has been developed by an organisation for use in respect of products (such as motor vehicles) manufactured by it or its members.
If not approached carefully, incorporation by reference can be inconsistent with some fundamental law-making principles, including the requirement for Parliament to have control over the law and the requirement for obligations imposed by law to be clear, understandable and accessible. It is therefore necessary to work closely with legal advisers to ensure adequate safeguards are in place and the requirements of the Legislation Act 2012 (where delegated legislation is incorporating the document) are complied with.
Consider whether any amendments to the incorporated material will automatically become part of the law. For instance, if a failure to comply with a requirement found in the incorporated material is an offence, those who subsequently amend the incorporated material are creating/amending the criminal law. The Legislation Act has default provisions addressing these issues (see Part 3, Subpart 2) that should be considered.