delegated legislation

What is delegated legislation

Parliament gives law making powers to another body through the creation of an enabling act (act of parliament that gives law making powers to another body)

What are the type of delegated legislation

1. Bylaws

2. Statutory instruments

3. Orders in council

What are by-laws

Made by local authorities in relation to local matters

• County Councils

Can also be made by public corporations in relation to their activities

Examples of by-laws (& case)

• Clean neighbourhoods & Environments Act 2005 - delegates local authorities power to designate ‘poop scoop’ areas

• Transport Act 2000 - delegates power to the strategic railway authority to make railway by-laws

Boddington v British Transport Police - the legality of a by-law banning smoking on trains was upheld by the House of Lords

What are statutory instruments

Issued by ministers as rules, legislation,& orders

Example of a statutory instrument

Employment Rights Act 1996 is an enabling act under which the Time off for Public Duties Order 2018 was made

What can statutory instruments be used for

• Give affect to EU law

• Update the law

• Respond to developments

Example for EU law

European Communities Act 1972 allowed gov ministers to make statutory instruments to give affect to European provisions

E.g. The Control of Trade in Endangered Species Regulations 2018

Example for updating the law

National Minimum Wage Act 1988 allowed gov ministers to update the amount payed for minimum wage

Example for responding to developments

European Communities Act 1972 allowed gov ministers to make statutory instruments to give affect to European provisions

Eg. Export Control (North Korea Sanctions) Order 2018

What are orders in council

Made by the king & privy council under powers delegated to them by an enabling act

What can orders in council be used for

• Amend acts to keep up with events

• Deal with emergencies

Example for keeping up with events

Misuse of Drugs Act 1974

Example for emergencies

Energy Act 1976 allowed the Energy Act 1976 (Reserve Powers) Order 2000 to be made

What are 4 parliamentary controls on delegated legislation

1. Enabling Act

2. Affirmative Resolutions

3. Negative Resolutions

4. Joint Committee on Statutory Instruments

What is an enabling act

Sets out the scope of the delegated powers, who can exercise them, & what procedures must be followed

(Can be repealed)

Advantage & disadvantage of enabling acts

• Advantage - allows parliament to set limits, change, or remove delegated powers, which upholds sovereignty

• Disadvantage - if the powers set out in the act are drawn widely, it can make it difficult to bring Judicial Review proceedings - gives too much power away from the legislature to the executive, contrary to the separation of powers

E.g. EU Withdrawal Bill

What are affirmative resolutions

Requires the approval of both houses of parliament within 40 days

Advantage & disadvantage of affirmative resolutions

• Advantage - allows parliament to debate & vote on delegated legislation which upholds sovereignty & allows for proper scrutiny of important issues

• Disadvantage - time-consuming procedure which goes against the whole point of delegated legislation

Only applies if set out in the enabling act - majority aren’t subject to this procedure

What are negative resolutions & where is this set out

s6 Legislative & Regulatory Reform Act 2006

If a draft order is laid before parliament & no objections are raised within 40 days, it will automatically become law

~ Used mainly for uncontroversial provisions like road closures

Advantage & disadvantage of negative resolutions

• Advantage - quick, allowing delegated legislation to be implemented without undue delay while allowing concerned MP’s to raise objections

• Disadvantage - majority of SI’s become law without a debate or vote meaning unfair or poorly drafted SI’s may not be detected

What are Joint committees on statutory instruments

Membership is drawn from both houses of parliament

Consider all SI’s made under enabling acts by assessing technical qualities, not merits,& decide whether to draw special attention of parliament

Advantage & disadvantage of joint committees

• Advantage - allows for detailed scrutiny which should detect any unclear or defective SI’s, or ones that are ultra vires

• Disadvantage - cannot consider the merits of delegated legislation & can only report issues to parliament which they may choose not to address

When can the judiciary control delegated legislation

DL can be challenged by courts on the grounds that it is ultra vires

This is done through Judicial Review proceedings heard in the Kings Bench Division of the High court

What are the 3 types of ultra vires & example

1. Substantive - goes beyond the powers set out in the enabling act

R v Home Secretary ex parte Fire Brigades Union - went beyond the powers delegated to him in the Criminal Justice Act 1988 when removing firemen from the criminal injuries compensation scheme

2. Procedural - the correct procedure for making delegated legislation has not been followed

R v Secretary of State for Justice - legislation required consultation to pass

3. Unreasonable

APPH v Wednesbury Corporation - a decision is only unlawful is it was ‘so unreasonable that no reasonable authority would every consider imposing it’

What is the outcome of judicial review & case

If successful, the delegated legislation is void (no longer legally effective)

Confirmed in R v SoS for justice

Advantage & disadvantage of judicial review

• Advantage - allows ordinary citizens to take action in order to hold the gov accountable for unlawful decisions which upholds the separation of powers as the court can act as a check on the exercise of power by the executive

• Disadvantage - can only operate if a person is sufficiently aware or well advised to being a case forward, & they can afford to - short time limit which claims can be brought