Delegating law-making powers
This is a single section from Chapter 14. Read the full chapter here.
For what purposes may the power to make secondary legislation be exercised?
The empowering Act should clearly and precisely define the permitted scope of secondary legislation and the purposes for which it may be made.
It is normal to specify in an empowering provision that the named delegate is empowered to make secondary legislation on a defined range of subject matters and for defined purposes. This ensures that the resulting secondary legislation is within the limits intended by Parliament. Before settling an empowering provision, it is advisable to consult those who will implement the Act and make the secondary legislation. This will help to identify the extent of the powers that are needed and in what circumstances those people anticipate exercising the powers. Generally, officials should have a clear idea of the scope and content of secondary legislation when the empowering provision is being developed.
A power to create secondary legislation should be wide enough to enable an Act to be effectively implemented. Some flexibility in an empowering provision is often justified as it can be difficult to be sure exactly how the Act’s requirements will be legally operationalised. However, flexibility needs to be balanced against the need to have clear boundaries about the scope of the power so that it is not unfettered. The RRC may criticise an empowering provision if it is drafted so broadly that its boundaries are uncertain.
A rushed or unfinished policy development process does not justify a broad or relatively unfettered empowering provision.