UK Acts of Parliament frequently confer powers to enact delegated legislation on "The Secretary of State". But how does one tell which Secretary of State holds any particular delegated-legislative power, particularly in cases where departments have been reorganised and ministerial positions renamed since the original Act of Parliament was passed?
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Note that in practice the Secretaries are just larping at their jobs and most decisions are made by unelected senior bureaucrats that the cabinet officials sign off on. See Dominic Cummings’s writing for more details. Cabinet Secretaries can’t fire anyone, only the PM can do that, and thus only the PM holds any real power.– JonathanReezCommented Aug 18 at 5:01
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3 Answers
I worked for the Home Office many years ago. I recall being advised there that in general all Secretaries of State are interchangeable in law. If say, the Home Secretary was not available and something needed urgently signed by him/her personally (as opposed to by an official acting on his/her behalf) then another Secretary of State from another Department would be asked to sign it instead. That satisfied the legal requirements.
I recall that happening with things like urgent Deportation Orders which, at one time, had to be signed by a Secretary of State personally. (That's not necessary now).
Ultimately, it's a matter for the government to determine which departments are responsible for making which delegated legislation, and to ensure that departments co-ordinate with each other to ensure that there is no overlap.
This is one reason why Acts of Parliament refer simply to the "Secretary of State": to allow governments to reorganise as required without having to worry about transferring these powers.
Having said that, some powers are more specific; in particular, some related to justice and courts are delegated to the Lord Chancellor alone (example), others relating to finance are delegated to the Treasury.
In any case where the powers are assigned to a specific person or department, the government may nonetheless reassign them using section 1 of the Ministers of the Crown Act 1975 (example).
answered Jul 12 at 20:22
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Yep, I understand that governments have the ability to reassign powers conferred on "The Secretary of State" between different SoSs. But when they reassign those powers, do they write down the fact that they've done it anywhere? If so, is the place where they write it down public?– user36423Commented Jul 12 at 21:51
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1@DanielHatton: as far as I can tell: no. For a start, there is no public document that I'm aware of which lists all of the powers to make statutory instruments, let alone which department is responsible for which SIs. The only formal reallocations are the ones mentioned in the final paragraph, where "the Treasury" might be replaced by "the Secretary of State", for example. Commented Jul 12 at 23:07
The theory is that any Secretary of State generally has the powers of any other Secretary of State, and most legislation is written that way.
The practice is sometimes different in some details and so, when necessary, changes are implemented through a "Transfer of Functions order" using sections 1 and 2 of the Ministers of the Crown Act 1975. Such orders also enable newly created positions to have their own corporate seal.
For example, The Secretaries of State for Energy Security and Net Zero, for Science, Innovation and Technology, for Business and Trade, and for Culture, Media and Sport and the Transfer of Functions (National Security and Investment Act 2021 etc) Order 2023 shuffled various responsibilities around some new and existing Secretaries of State.
Such orders can be found at legislation.gov.uk are but are not particularly enlightening due to the general powers of Secretaries of State. Usually their job titles give a better indication.
