Chapter 15 - Delegated legislation

What is delegated legislation?

Laws or rules written outside Parliament when a person or body has been given the authority, by Parliament, to make those laws or rules

What is an enabling act?

A law passed by Parliament which gives a person or body the authority to make laws

Who can make orders in council?

The Queen and Privy Council

What is order in council?

It effectively allows the government to make legislation without having to be debated or voted on in Parliament

On what kind of matters can order in council be used on?

- Transferring responsibility between government departments

- Bring acts of Parliament into force

- To make law in emergencies under the civil contingencies act

What is a statutory instrument?

A piece of delegated legislation created under the enabling act which will often be used to complete the detail of the enabling act

What are examples of different departments dealing with different areas of policy?

- The Minister for work and pensions can make regulations on work related matters, such as health and safety at work

- The Minister for Transport can deal with road traffic regulations

What are by-laws?

These can made by local authorities to cover matters within their own area: a country council can pass by laws affecting a whole county, while a district or town council can only make by-laws for its district or town.

What are some examples of by-laws?

- Many local by-laws involve traffic control, such as parking restrictions

- Other by-laws may be made for regulating behaviour, such as banning drinking in public places or banning people from riding bicycles in a local park

What are some of the controls parliament have on delegated legislation?

- Approval of the parent act

- Negative resolution procedure

- Affirmative resolution procedure

- Scrutiny by committees

What is meant by the approval of the parent act?

Parliament has initial control over what powers are delegated, as the Enabling Act sets out the limits within which any delegated legislation must be made

What is meant by negative resolution procedure?

This means that the relevant will become law unless rejected by Parliament within forty days of publication

What is meant by affirmative resolution procedure?

It means that the Statutory Instrument will not become law unless specifically approved by Parliament

What is a disadvantage of affirmative resolution procedure?

Parliament cannot amend the Statutory Instrument and it can only be approved, annulled or withdrawn

What are the two committees that can be used to scrutinise statutory instruments?

- The Joint Committee on Statutory Instruments

- The Second Legislation Scrutiny Committee in the House of Lords

What is the use of Scrutiny by Committees?

These committees can only check the legislation once it has been made and come into force. They can review all Statutory Instruments, and where necessary, draw the attention of Parliament to points that need further consideration.

What is the role of the Delegated Powers and Regulatory Reform Committee?

To report whether the provisions of any bill inappropriately delegate legislative power, or whether the exercise of legislative power is subjected to an inappropriate degree of parliamentary scrutiny

What is the controls that courts have on delegated legislation?

- Judicial review

- Procedural ultra vires

- Substantive ultra vires

- Wednesday unreasonableness

What is meant by judicial review?

A piece of delegated legislation can be challenged in court by the procedure of judicial review. The challenge will be made on the ground that the legislation is ultra vires - that it goes beyond the powers granted by the Enabling act

What is meant by procedural ultra vires?

It is ultra vires because the correct procedure set out by the enabling act has not been followed.

What is meant by substantive ultra vires?

This is when a rule making body has no substantive power under the empowering act to make the rules in question

What is meant by Wednesday unreasonableness?

This is when a decision is so unreasonable that no reasonable body or authority would ever consider imposing it. If the test is met, the decision will be ultra vires and void.

What are some reasons for the use of delegated legislation?

- Parliament does not have time to consider every small detail of law

- Parliament does not have the technical expertise

- Further consultation may be required before detailed rules are introduced

- There may be a need to introduce laws quickly

- By-laws deal with local issues

- Delegated legislation can be amended or revoked more easily that primary legislation

What are some advantages of delegated legislation?

- Time saving

- Policy over detail

- Speed

- Expertise

- Flexibility

- Controls

How is time saving an advantage?

It's quicker to pass and amend that an act of parliament, which must be debated and passed by both houses. This means it can deal with changing situations such as covid.

How is policy over detail an advantage?

It is better for Parliament to focus on wider issues of policy rather than detail, such as in the Road Traffic Act which made a general requirement for motorbike helmets to be worn, but detailed specifications where set out in separate regulations

How is speed an advantage?

Delegated legislation allows for a quick response in an

emergency as Parliament might not be sitting at weekends or during Parliamentary holidays.

How is expertise an advantage?

It is better to initially involve and use technical expertise, or local knowledge, when making detailed laws for specific industries or local areas.

How is flexibility an advantage?

Delegated legislation can be easily amended without having to go back to Parliament. An example is the annual updating of the amount of the minimum age each year

How is controls an advantage?

Both forms of control - parliamentary and judicial- help to avoid any abuse of power by ministers or others exercising delegated law making powers

What are some disadvantages of delegated legislation?

- Undemocratic

- Sub-delegation

- Large volume

- Obscure wording

How is delegated legislation being undemocratic a disadvantage?

It takes law making away from the democratically elected House of Commons and allows non elected people to make law. This is acceptable provided there is sufficient control, but parliaments control is fairly limited.

How is sub-delegation a disadvantage?

This means that law making authority is handed down another level and government ministers rely on civil servants working in their departments. This brings comment that much law is made by unelected civil servants and merely rubber stamped by the minister of that department.

How is there being a large volume of delegated legislation a disadvantage?

It makes it difficult to discover what the present law is. This problems is aggravated by a lack of publicity, as much delegated is made in private, in contrast in public debates in parliament.

How is obscure wording a disadvantage?

It can lead to difficulty in understanding the law and requiring judges to interpret the meaning