Publication Type

Journal Article

Version

publishedVersion

Publication Date

2-2023

Abstract

The usage of delegated legislation as a means of governance deserves significant attention, in view of the enormous impact that it is capable of having on the lives of citizens. While reforms to the process of parliamentary scrutiny are an important means of minimising the inappropriate usage of delegated legislation, this paper explores the possibility of drawing more fruitfully upon judicial review as an additional control mechanism. It undertakes a theoretical analysis of what makes delegated legislation distinct from primary legislation and other types of executive action for the purposes of judicial review, with a view towards identifying the proper normative orientation of judicial review of delegated legislation – upholding the moral requirements of delegation relationships and safeguarding democratic accountability and the rule of law. It then argues that existing grounds of review applied towards delegated legislation go some way towards but are inadequately directed at this normative orientation. Drawing inspiration from Irish and US jurisprudence, the paper critically evaluates several possible means of filling this doctrinal space, and concludes that the non-delegation doctrine and a rule of law-based ground of judicial review directed at exercises of delegated law-making power can supplement the law of judicial review of delegated legislation.

Keywords

Administrative law, judicial review, delegated legislation, rule of law

Discipline

Administrative Law | Legislation | Rule of Law

Research Areas

Public Interest Law, Community and Social Justice

Publication

Legal Studies

First Page

1

Last Page

18

ISSN

0261-3875

Identifier

10.1017/lst.2023.7

Publisher

Cambridge University Press

Copyright Owner and License

Authors-CC-BY

Creative Commons License

Creative Commons Attribution 3.0 License
This work is licensed under a Creative Commons Attribution 3.0 License.

Additional URL

https://doi.org/10.1017/lst.2023.7

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