Jake Rylatt (University of Cambridge) and I have submitted written evidence to the Commons Procedure Committee’s inquiry into Delegated Powers in the Great Repeal Act. Our evidence focuses particularly on the possible role of judicial review in relation to delegated legislation.
Based on the legal principles identifiable in case law, we argue that the following measures may increase legal certainty by reducing the likelihood of legal challenge:
(i) Clear identification of the precise scope of the powers delegated in the parent clauses contained in the Great Repeal Bill;
(ii) Avoidance of the use of Henry VIII clauses within the Great Repeal Bill unless strictly necessary;
(iii) If Henry VIII clauses must be utilised: (a) there should be particular reluctance to grant prospective Henry VIII powers to the Executive; and (b) they ought to be drafted in the narrowest possible terms (e.g. instead of one single clause permitting Ministers to modify primary legislation to enable withdrawal from the EU, a ‘sectoral’ approach might be better adopted. This could restrict the scope of a Henry VIII clause to a specific area of regulation, and provide more detailed and tailored guidance on how it may be exercised).
Our evidence is available here.