The Province of Delegated Legislation

Abstract Delegated legislation is produced by the executive branch of government, usually under powers conferred by legislatures. Such powers have provoked controversy in most contemporary democracies. There is a widely perceived need to bolster the democratic legitimacy of law produced in this way, either through greater legislative oversight or enhanced participation, or both. This chapter explores how the organically evolved UK constitution has struggled to meet this challenge since the outset of the twentieth century. It examines how the powers to adopt delegated legislation arose, the constitutional tensions it produced, and how that prehistory relates to the dramatic resort to such powers in recent legislation adopted to facilitate the UK’s departure from the European Union. More specifically, it surveys the experience of making and laying delegated legislation before Parliament, and the track record of parliamentary scrutiny, before considering how that background may play an important role in how Brexit-related delegated legislation may fare in legal challenges in the coming years.