Delegated legislation

What is delegated legislation?

Laws made by people other than parliament. This is where parliament give the power to make law to someone else who has more time or knowledge.

Enabling act

Parliament passes an enabling act which is like the ‘bare bones’ of the new law. This act means parliament can delegate its authority to other institutions to make laws on its behalf. Once the detail (or flesh) is added to the new law then it becomes delegated legislation. There are three types of DL.

Types of DL: bylaws

Parliament can delegate its authority to other institutions to make laws on its behalf. Bylaws are made by local councils and large companies. They are made to deal with local problems e.g. “poop scoop” areas, parking etc. The power to make bylaws comes from the enabling act called the local government act.

Types of DL: statutory instruments

Parliament can delegate its authority to other institutions to make laws on its behalf. Statutory instruments are made by government ministers for their department. E.g. minister of transport will make SI’s to regulate trains. They are made to change complex laws that require expert knowledge - for the whole country. For example, pension and health safety laws. The power to make SI’s comes from the enabling act.

Types of DL: orders in council

Parliament can delegate its authority to other institutions to make laws on its behalf. Orders in council are made by the monarch and the privy council (advisors to the monarch). They are mainly used to deal with emergency situations, and to amend the law. They can be made very quickly. For example, and OIC was made in 2 hours to stop the movement of cattle during the foot&mouth crisis. The power to make OIC’s comes from the enabling act.

Advantages of D.L.

Parliament don’t have the time to go through the complex stages of a new Act for every law that is needed. There are over 3,000 SI’s made each year compared to 20 Acts of Parliament. 

Parliament will need to delegate its powers in an emergency situation when a fast response is needed. For example, it can only take 2 hours to create an OIC!

Parliament don’t often have the expert or local knowledge to make useful laws. 

Disadvantages of D.L.

D.L. is undemocratic. It is made every day without parliament debating and voting at each stage and some say this isn’t right. 

There is a large volume of DL made each year e.g. over 3000 SI’s. Ordinary people may be innocently breaking the law because they can’t keep up. 

Unless the law is controversial, there is a lack of media attention for new laws. The public are therefore kept in the dark!

How do parliament control D.L.?

Affirmative resolution - the DL must be debated and voted upon in order to become law. 

Negative resolution - the DL is laid out before parliament and unless someone objects to it, it will become a law in 40 days. 

The enabling act - the enabling act itself limits the power by setting the boundaries of the DL. 

How do judges control D.L.?

Substantive ultra vires - DL has gone beyond the powers of the enabling act. 

Procedural ultra vires - the court checks if the correct procedure has been followed, as specified in the enabling act. 

Judicial review - judges in the high court review the D.L. to see if it is beyond the power or ‘ultra vires’.