Paper 3: English Legal System

Delegate

Give power to

Delegated Legislation

Parliament delegates to other people and organisations to make secondary legislation.

Primary Legislation

Acts of Parliament

Three types of Delegated Legislation

- Statutory Instruments

- Orders in Council

- Bylaws

Most common form of delegated legislation in UK

Statutory Instruments

Who creates Statutory Instruments ?

Government ministers & departments

Who gives authority for Statutory Instruments ?

Enabling Act of Parliament

Purpose of Statutory instruments

Allow for detailed rules and regulations to be established without need for full parliamentary debate

Statutory Instrument examples

- Covid Regulations

- Annual increase of the minimum wage

Purpose of Orders in Council

Allows government to make laws without usual parliamentary process - often used in emergencies / for national security

Who makes Orders in Council ?

Typically made by Privy Council

Orders in Council example

After 9/11, orders were issued to restrict certain financial transactions

Who makes By-laws ?

Local authorities or other designated bodies

Purpose of By-laws

Governing specific areas and addressing issues

What issues do By-laws commonly address ?

- Public behaviour

- Local services

- Community regulations

By-laws examples

- TFL creates by-laws to regulate behaviour on its transport network, e.g. fare evasion & prohibited conduct

- Bromley Council has areas where there are fines for dog fouling or litter

Why is a large amount of law made by delegated legislation?

- Lack of Parliamentary time to deal with detailed rules

- The need to respond quickly to emergency situations, e.g. Covid, in circumstances where Parliament would be too slow to respond

- Permits contributions from experts

- Need for local knowledge / knowledge on specific issues that arise in these areas

European Union (EU)

-Group of 27 countries in Europe

Purpose of EU

- Countries coming together to make things better, easier & safer for people

- Countries agreed to work together & help each other

Institutions of the EU

- European Parliament

- Council of Ministers

- European Commission

- Court of Justice

- European Council

European Parliament

Elected EU body that consults on issues proposed by European Commission.

Council of Ministers

- Primary lawmaker and budgetary authority

- Coordinates member state policies, develops foreign policy, and concludes international agreements

European Commission

Responsible for proposing EU legislation, implementing it, and monitoring compliance.

Court of Justice

- Supreme appeals court for EU law

- Settles legal disputes involving EU institutions / member states

European Council

- Ultimate decision-making body of the EU

- Passes legislation from the commission into law

- Comprised of one representative from each member state's government

How do judges control delegated legislation?

- Judicial Review

- Ultra Vires

Judicial Review

The power of the courts to declare laws unconstitutional.

Ultra Vires

- Rules, regulations, or by-laws made by ministers or bodies are declared invalid by courts because they exceed the authority granted by the parent (enabling) Act of Parliament.

- Acts as a key judicial check to ensure delegated law complies with primary legislation

Ultra Vires Latin meaning

"Beyond the powers"

How does Parliament control delegated legislation?

- Enabling Act

- Scrutiny Committees

- Affirmative / Negative Resolution

- Questioning Ministers

- Revocation

Enabling Act

Allows Parliament to delegate authority to other institutions by enacting an Act of Parliament (known as an enabling act) setting out the powers to be delegated.

Scrutiny Committees

- Parliamentary bodies that review Secondary Legislation

- They ensure these rules are legally sound, do not exceed authorized powers, and are not politically contentious.

Affirmative / Negative Resolution

- Used to scrutinise delegated legislation

- The affirmative procedure requires active approval by both Houses before legislation becomes law, often used for significant matters.

- The negative procedure allows legislation to become law automatically, unless rejected within 40 days, accounting for roughly 75% of statutory instruments.

Questioning Ministers

- MPs can question ministers about delegated legislation

- This includes oral and written questions, debates, and committee reviews

Revocation

- Annulling, rescinding, or cancelling statutory instruments, bylaws, or regulations (secondary legislation) previously made by ministers or authorities.

- Often used for updating law or reacting to changes