Delegated legislation in the pandemic : further limits of a constitutional bargain revealed

Lock, Daniella and Londras, Fiona de and Grez Hidalgo, Pablo (2023) Delegated legislation in the pandemic : further limits of a constitutional bargain revealed. Legal Studies, 43 (4). pp. 695-733. ISSN 0261-3875 (https://doi.org/10.1017/lst.2023.25)

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Abstract

The challenge that delegated legislation poses to parliamentary sovereignty and associated supremacy in the UK is purportedly addressed through what we term the 'constitutional bargain of delegated law-making'. This has three elements: the proper limitation of delegation by Parliament through well-designed parent legislation, the exercise of self-restraint by the Executive in the use of delegated authority, and the enablement of meaningful scrutiny by Parliament. As a paradigm situation in which delegated law-making might be said to be necessary, the first year of the COVID-19 pandemic is an apposite context in which to assess the robustness of that bargain. Our analysis uses a sample of Westminster-generated pandemic-related secondary instruments as a peephole into the broader dynamics of this constitutional bargain and further reveals its significant frailties; frailties that are exposed, but not created, by the pandemic.

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