Delegating law-making powers
This is a single section from Chapter 14. Read the full chapter here.
Should the delegated power be identified as a power to make secondary legislation?
If the delegated power is, in substance, a power to make the law or alter its content (rather than just apply the law to a particular case), the empowering Act should identify the power as creating secondary legislation.
Whether a power to do anything under the empowering Act will result in secondary legislation needs to be carefully considered. If the power is of a legislative character, the power should be expressly identified (using the standard wording) as a power to make secondary legislation.
Whether or not a power is classed as legislative also affects:
- what safeguards apply to ensure transparency and accountability. If a power is legislative, the Legislation Act 2019 generally automatically applies publication, presentation, and disallowance safeguards– see 5. If a power is not identified as legislative, there is likely still to be a need for transparency and accountability, but the safeguards discussed in chapter 16 are usually used instead (for example, an exercise of a power may be subject to review or an appeal).
- It may also affect the interpretation of the power. If a power is not expressed to be legislative, then the courts could infer a narrower scope to the decision maker’s powers, and be more inclined to take a “hard look” at the decision. For example, the courts may be reluctant to interpret the power as allowing the decision maker to prescribe rules that apply to a class of persons.
Whether or not a power is classed as legislative is a legislative design question that focuses on whether the power will have legislative effect. This turns on the intended nature and scope of the power. It does not turn on the description or form of the instrument, who the decision maker is, or the importance of the instrument.
The key question to be asked is whether, taken as a whole and considering how the power is intended to operate in practice, Parliament will delegate a power to make law or alter its content.
In considering this issue and deciding whether or not a power should be classed as legislative, it may be helpful to consider powers in legislation more generally. Powers in legislation can be broadly divided into 4 categories:
Sometimes the question of whether or not a power may have legislative effect is straightforward - some regulatory powers fit clearly into the legislative, administrative, judicial, or guidance categories outlined above. For example:
- powers to commence, amend, replace or repeal other legislation should be classed as legislative:
- powers to create criminal offences or set maximum penalty levels should be classed as legislative:
- powers to do something that only gives effect to a transaction should be classed as administrative (and not legislative). For example, an instrument to effect a taking of land for public work:
- powers to take enforcement action should be classed as administrative (and not legislative):
- powers of a court, tribunal, or similar judicial body to determine or record how the law applies on a case-by-case basis should be classed as judicial (and not legislative).
However, the categories do not have rigid boundaries. They overlap and similar policy outcomes can be achieved by more than one type of power. In this case, policy-makers need to choose what type of power best suits, or is most appropriate for, the particular policy and legislative context. The following rules of thumb may help in these less clear cases:
Scope of application:
- powers should generally be classed as legislative if they set legal rules that apply generally on a class basis (for example, to the public or classes of the public) or set a framework to be applied again and again:
- powers should not generally be classed as legislative if they are only exercised in relation to one or more named persons (however, see Chapter 16 on exemptions for countervailing considerations) or they apply only to a particular case (unless the particular case effectively determines the basic scope of the Act):
Scope of discretion
- powers should not generally be classed as legislative if they will be made under a narrow discretion or will apply only to a particular person (these are administrative, or, occasionally, judicial):
Nature of power
- powers should generally be classed as legislative if they:
- regulate conduct for a class of persons (by mandating, requiring, prohibiting, restricting, or otherwise setting rules) where non-compliance will incur a sanction
- set rules for a class of persons – where compliance is a prerequisite for something under the empowering Act – for example, setting procedural requirements for a class that apply to obtaining or exercising a legislative right or obligation
- create, alter, or remove a right for a class of persons where there is a mechanism for enforcing the right
- set the amounts of fees or levies
- powers should not generally be classed as legislative if they will set or state a strategy, policy, or intent that will influence decision-making but not themselves set enforceable rights or obligations (these are persuasive instruments) (for example, a government policy statement that a decision-maker has given effect to):
- powers should not generally be classed as legislative if their effect could be achieved by a natural person without legislation (for example, buy or sell assets, enter into contracts, set or change the terms of a trust):
- powers should not generally be classed as legislative if they concern constitutional conventions or the internal machinery of Government:
Impact on empowering Act
- powers should generally be classed as legislative if they change the scope of the empowering Act – for example, by altering the general categories of who or what it applies to or when or where it applies:
- however, powers should generally not be classed as legislative if they are powers merely to assign something to a category, or give it a particular status, where the empowering Act already creates the category or status and sets out the law that applies in relation to things in the category or with the status. For example, an instrument that declares an area of land to be a national park:
In determining whether a power should be classed as legislative or not, it is relevant to consider whether the power ought to be subject to the safeguards imposed by the Legislation Act 2019 for secondary legislation (publication, presentation, and disallowance). However, a wish to avoid one or more of those safeguards is not, on its own, an indication that the power is not legislative. If other indications point to it being more appropriate to class it as legislation, but it is appropriate for one or more of those safeguards not to apply, it should be classed as legislation and exemptions considered (see 14.5).Caution should be used in looking at pre-2021 empowering provisions as a guide to how to class powers as legislative or not – the Secondary Legislation Act 2021 applied the above framework to existing powers, but generally took the approach that if Parliament had previously expressly classified something as a “disallowable instrument”, that approach should be grandfathered because the power and safeguards had been designed on that basis (even when the power would not be legislative on the above framework).