Delegated Legislation

DL = Parliment delegates its power to others. However, Parliment remains supreme law makers and can remove them at any time. Parliment delegated by an enabling act (aka parent act). An example of a parent act is: The police and criminal evidence act 1984

why do we need delegated legislation?
- Parliment does not have time to consider every possible law
- Parliment lacks expertise of the area that it could affect (the MP of colchester will have more knowledge of the are than Parliment) and so delegated legislation allows MPs to set broad principles amd expect civil servants to fill in the detail.
- Ministers can benefit from further consultation allowing the law to work more effectively
- Delegated legislation, esp. orders in council can be made far faster than Acts of Parliment in times of emergency
- Delegated Legislation can be adapted far more freely based on unfolding event
- Bylaws enable more effective local representation by those who have more local knowledge.

Types of Delegated legislation:
- Orders in council: Made by the king with the Privy council (former/current politicians from lords or commons) - do not require government votes, used to; transfer responsibility between government departments, bringing acts/parts into force and making emergency legislation. In 2003 orders in council was used to alter the Misuse of Drugs act 1971 to change cannabis from a calss B to C drug. It has since changed to a class B.
- Statutory Instruments: rules and regulations created by government ministers. Secretary of states head up departments and can make regulations in relations to these; for example, the Minister for work and pensions can make regulations on work-related matters such as health and safety. Some Instruments are very short.
- Bylaws: made by loacl authorities and public corperations; bylaws are usually made under the Local Government (Miscalleneous Act 1982 for local authorities).

Advantages of DL:
- Time saving: does not require all the Parlimentary debates or require Government time in Parliment
- Clear policy focus: its better for parliment to focus on broad policy reflecting the oublic views for experts to fill in details (see road traffic act 1998 - makes motrocyclists needs helmets)
- Speed: DL can be enforced immediately, even when Parliment is not sitting, see Foor protection order 1986; this was laid before parliment within 2 hours of the chernobyl disaster.
- Expertise: ministers benefit fromn civil servants/ bylaws are made by people in the area meaning the law should be better as it reflects what the people want.
- Flexibility: DL can be easily amended without having to go to Parliment - this is useful for the minimum wage.
- Commencement: DL can be used to bring laws into force once people are prepared for it.
- Controls: both parlimentary andf judicial controls help avoid abuses of power.

Disadvantages of DL:
- Sub-delegation: As a minister is not an expert DL will often be drafted by civil servants and approved by the minister, but civil servants are not democratically accountable for any mistakes as their not voted in.
- Democratic deficiency: DL provides others with power without clear parlimentary oversight, ministerial posts are not elected, but appointed by the prime minister from elected MPs meaning they do not have a direct mandate from the people and are not directly accountable for their decisions - i may like you as an MP, but not your decisions as a minister in education (example).
- The speed/ volume of DL: The volume and speed of DL can make it difficult to ascertain what the law is in certain situations. This is a problem as the rule of law requires the law to be ascertainable to be complied with.
- Poor drafting: Just like with statutes, DL can be poorly worded leading to long court disputed over the sepcific meaning of terms.

Parlimentary Controls (Only apply to statutory instruments (SI’s) Prior to enabling act.

Approval of the parent act - before any delegated legislation is made Parliment must have authorised it in the parent act; Parliment can set clear parameters such as: which government minister can make the delegated legislation, the types of delegated law they can make and the geographical scope it can apply to and whether consultation is necessary, etc… Parliment can also repeal the enabling act at any time.

The Delegated Powers and Regulatory Reform Committee - HOL committee, there’s no Commons equivalent, which examines whether an enabling act inapproiately delegate’s power; not concerned with policy - just delegation: whether it’s approiate and enough parlimentary oversight for any powers delegated to others. It provides a report to Lords before their committee stage in the passage of the enabling bill prior to it becoming an act.

After enabling act:

Negative resolution - SI are laid before Parliment for 40 days, if no orayer motions made (an MP objects), they automatically become law.
Affirmative resolution - SI does not become law unless specifically approved by Parliment which will be noted in the parent act, for example: PACE 1984 requires approval to change the police’s codes of practice. Parliment can only approve or annul the delegated legislation - but prior to this the minister can withdraw it.
Scrutiny Committies - The joint committee on SI’s (commons) and the secondary legislation scrutiny committee (Lords). Both committies only look at legislation once it’s in force, but only consider the technical aspects and will refer things back to Parliment if the SI: imposes a tax/charge, the SI applies retrospectively which was not providedfor in the enabling act, the SI appears to have gone beyond powers in the enabling act, the SI makes unusual or unexpected use of legitimate powers or it is unclear of defective in some way.

Judicial controls: applies to all delegated legislation, but not enabling acts directly
A person (C) can make an application for judicial review (JR) if they have locus standi (are affected by delegated legislation). JR’s are heard in the King’s Bench Division of the High court. The application will allege that the DL is ultra vires (beyond power). If the court grants the judicial review the DL can be declared void and quashed. The Judicial Review and Courts Act 2022 also enables judges to suspend quashing orders to enable the public body to comply.

• Enabling acts themselves cannot be challenged by judicial review as Parliment is the supreme law maker

Types of review:
- Procedural review: C alleges a procedure in the enabling act wasn’t followed.
- Substantive review: C alleges the DL goes beyond powers given in the enabling act.
- Unreasonableness: C alleges that the decision was so unreasonable no reasonable body would come to it.