delegated legislation

what is delegated legislation?

law made by a body other than parliament but with the authority given to it by parliament

what is meant by ultra vires?

beyond power

how does parliament delegate the authority to other bodies to make law?

pass an enabling act which other bodies must stay within the terms and conditions set out in the act. if they do not comply with the conditions, any law is declared ultra vires

what is the need for delegated legislation?

saves parliamentary time
allows rapid change
experts with technical knowledge can be used
emergency legislation can be passed quickly
local knowledge is used making bylaws

how does delegated legislation save parliamentary time?

parliament don’t have time to contemplate every small detail of complex regulations
only limited amount of time to pass legislation allows throroughly debated regulations to pass through

how does delegated legislation allow rapid change?

allows law to be made more quickly than parliament which is vital for times of emergency
can be amended/revoked quickly relatively easily so the law can be kept up to date and law can meet future needs

how does delegated legislation help in emergencies?

in an emergency or when parliament is not sitting legislation can be passed quickly - can be achieved through the use of orders in council

how does delegated legislation involve local knowledge?

parliament may not be the best institution to recognise/deal with the needs of the local people
local people elect councillors from certain districts and it is their responsibility to pass legislation in the form of bylaws

what are the 3 types of delegated legislation?

orders in council
statutory instruments
bylaws

what are orders in council?

made in times of emergency under the emergency powers act 1920 and civil contingencies act 2004
must be approved by the privy council and signed by the king
they can be used to amend law and give effect to EU law
example: the misuse of drugs act 1971 (modification)(no 2) order 2003 downgraded cannabis from a class b to a class c drug

what are statutory instruments (1)?

rules made by government ministers
ministers/government dept. are given authority to make regulations for their area of responsiblity
example: s.64 of the road traffic regulation act 1984 relating to traffic signs
approx 15 depts. in government and each one deals with a different area of policy

what are statutory instruments (2)?

acts only contain a broad framework and SIs are used to provide the necessary detail that is considered too complex in include in the body of an act
published in the form of regulations and governed by the statutory instruments act 1946
more than 3,000 published each year
made via affirmative or negative resolution

what are examples of SIs?

fixed penalty offences order 2013 states that using a mobile phone when driving attracts a fixed penalty
under PACE 1984 SoS issue codes of practice - the SoS can issue codes of practice relating to police powers of arrest, stop and search, detention etc.

what are bylaws?

made by local authorities, public corporations and companies usually concerning their area of responsibility
laws are made with awareness of the needs of that area
proposed bylaw must be advertised to allow local people to view and comment on it - accompanied by some sanction or penalty for their non-observance

what are examples of bylaws?

national trust regulates the use of its land by its own bylaws - no dogs/horses
national trust allows nudists at studland beach between notices

what are the 2 types of control of delegated legislation?

parliamentary control (mostly for SIs)
judicial control

what are the parliamentary controls for delegated legislation?

enabling act
affirmative resolution
negative resolution
super-affirmative resolution
consultation
joint committee on statutory instuments (JCSI)

what is an enabling act as a parliamentary control?

parliament has initial control with the enabling act which sets boundaries for DL to be made
states which government minister can make regulations
states type of laws to be made
sets out whether consultation is needed
parliament can repeal the enabling act at any time

what is affirmative resolution as a parliamentary control?

SIs have to be laid before both houses of parliament and have to expressly approve the measure
effective control
example: codes of practice under PACE 1984

what is negative resolution as a parliamentary control?

SIs are published without a debate/vote taking place - may be annulled by a resolution of either house of parliament within 40 days
about 2/3 of SIs are passed via negative resolution so not considered before parliament
become law on a future specified date and so limited control

what is super-affirmative procedure as a parliamentary control?

required to oversee legislative reform orders under the legislative and regulatory reform act 2006
provides parliament with more power to scrutinise proposed DL
reports must be produces and each house of parliament must expressly approve order before it can be made

what is consultation as a parliamentary control?

applicable to all types of DL
consult with interested parties or those who will be affected by DL
effective but not all enabling acts require it limiting its usefulness

what is JCSI as a parliamentary control?

all SIs subject to review by JCSI which reports to either house of parliament on any SI which it identifies and needing special consideration
control is limited as can only make recommendations to houses of parliament rather than force them to take on board suggestions

what are judicial controls of delegated legislation?

SI and bylaw can be challenged by someone who has been directly affected by the law - takes place in KBD of high court
DL is declared void

what is a case example of judicial review?

R (on the application of miller) v prime minister: SC reviewed PM’s order in council which suspended parliament for 5 weeks in run up to brexit
unanimous decision was that PM had gone beyond powers so the law was null and void

what is procedural ultra vires as a judicial control?

procedures laid down in enabling act for making SI haven’t been followed
aylesbury mushroom: enabling act required interested parties to be consulted before making law but they were not - held DL is void if it is procedurally ultra vires

what is substantive ultra vires as a judicial control?

customs and excise v cure and deeley: customs and excise commissioners tried to impose a tax and decide the amount to be collected but went beyond power given by parliament - DL is void for substantive ultra vires if goes beyond what parliament intended

what are judicial controls of delegated legislation?

procedural ultra vires
substantive ultra vires
unreasonableness

what is unreasonableness as a judicial control ?

no power to make unreasonable regulations
strickland v hayes bc: bylaw prohibiting singing/reciting of any song or ballad and use of obsence language was held to be unreasonableness and so ultra vires - no power to make unreasonable regulations
associated provincial picture houses ltd v wednesbury corporation: cinema allowed to open on sundays but licence barred under 15s from attending. cinema challenged this on grounds of unreasonableness but courts disagreed

what are the advantages of delegated legislation?

flexibility: DL used to amend existing legislation as easier to use DL than pass an act
time: parliament doesn’t have time to debate and pass all laws needed to run country effectively
speed: orders in council can be used in emergency when a law is needed quickly
expertise: made by specialist government depts. who have experts in field
local knowledge: bylaws made by local authorities who are familiar with needs of local area

what are the disadvantages of delegated legislation?

lack of control: most SIs passed using negative resolution which is a loose control and consultation isn’t always needed
undemocratic: DL made using unelected individuals/bodies. house of lords constitution committee said that government’s ‘escalating’ use of DL is ‘constitutionally objectional’
volume: so much DL is made each year (3,000)
sub delegation: power to make DL is sub delegated to those not given the original authority to pass law