Abstract
Many of us have been warning public service lawyers for many years that taking an absurdly broad power because you do not have the foggiest idea what you may want to do with it is actually a good way of ensuring that you will not be able to achieve your objectives because the wider the power, the more rigorously the courts will apply the presumption against the delegation of legislative power. The decision of the Supreme Court in R (on the application of the Public Law Project) v Lord Chancellor [2016] UKSC 39 provides helpful judicial authority for this proposition, particularly in relation to broad Henry VIII powers designed to allow the Executive to rewrite the primary legislative text at its own leisure and without the level of scrutiny attaching to Bills. The appeal concerned the lawfulness of a proposal by the Lord Chancellor in September 2013 to introduce a residence test for civil legal aid by amending Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, by means of delegated legislation, in the form of a statutory instrument.
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