Criminal law in the shadows: creating offences in delegated legislation

Chalmers, J. and Leverick, F. (2018) Criminal law in the shadows: creating offences in delegated legislation. Legal Studies, 38(2), pp. 221-241. (doi: 10.1017/lst.2017.18)

Abstract

Substantial numbers of criminal offences are created in the UK in delegated legislation, often carrying heavy maximum penalties. The majority are created in statutory instruments passed under the negative resolution procedure, which offers very limited opportunity for scrutiny and does not involve a parliamentary vote. This phenomenon has slipped under the radar of orthodox criminal law scholarship, where debate has focused primarily on the criteria that should be used to determine the content of the criminal law and on the principles to which such offences should conform, rather than on the process of creating criminal offences. Creating offences in delegated legislation raises questions of democratic legitimacy and has resulted in criminal offences being created which do not conform to basic principles of fair notice and proportionality of penalty. To address this, we propose that parliamentary approval should be required for all serious offences. It would be impractical to do this for all criminal offences, and direct participation in the legislative process via consultation can act as an alternative (or additional) legitimating principle. This does, however, require that the consultation process complies with certain basic minimum requirements, and we explain how these requirements might appropriately be framed.

• Item Type: Articles
• Additional Information: The research on which this paper is based was funded by the Leverhulme Trust.
• Status: Published
• Refereed: Yes
• Glasgow Author(s) Enlighten ID: Chalmers, Professor James and Leverick, Professor Fiona
• Authors: Chalmers, J., and Leverick, F.
• College/School: College of Social Sciences > School of Law
• Journal Name: Legal Studies
• Publisher: Cambridge University Press
• ISSN: 0261-3875
• ISSN (Online): 1748-121X
• Published Online: 22 June 2018
• Copyright Holders: Copyright © 2018 The Society of Legal Scholars
• First Published: First published in Legal Studies 38(2):221-241
• Publisher Policy: Reproduced in accordance with the copyright policy of the publisher