Delegated legislation
4 Law Making: Delegated Legislation ### 4.0 Introduction After reading this chapter, you should be able to: - Understand and explain the different types of delegated legislation. - Understand and explain parliamentary and judicial controls on delegated legislation. - Explain the reasons for the use of delegated legislation. - Discuss the advantages and disadvantages of delegated legislation.
Key Term
Delegated Legislation: Law made by an individual or body other than Parliament but with the authority of Parliament. This authority is typically established in a 'parent' Act of Parliament known as an enabling Act. The enabling Act creates a framework of law and delegates power to others to create detailed laws in specific areas.
4.1 Types of Delegated Legislation
There are three primary types of delegated legislation:
Orders in Council
Statutory Instruments
By-laws
4.1.1 Orders in Council
Orders in Council are made by the Queen and the Privy Council, which consists of the Prime Minister and senior government members. This type of delegated legislation allows the government to enact laws without Parliament's immediate involvement.
Orders in Council can be used for various matters, including but not limited to:
Transferring responsibilities between government departments (e.g., the establishment of the Ministry of Justice) to adapt to changes in government structure.
Bringing Acts (or parts of Acts) of Parliament into force; this enables quicker implementation of laws that have been passed by Parliament.
Implementing European Directives as a member of the EU to ensure compliance with international obligations.
Emergency powers are granted under the Civil Contingencies Act 2004, allowing the Privy Council to make laws in emergencies when Parliament is not in session, thus ensuring rapid response capabilities during crises.
Example: In 2003, an Order in Council amended the Misuse of Drugs Act 1971 to classify cannabis as a Class C drug; it was later reclassified back to Class B, demonstrating the fluidity of drug classification laws based on societal needs.
Each Order in Council requires an enabling Act. For instance, the enabling Act for the cannabis classification was the Misuse of Drugs Act 1971, showcasing how foundational legislation supports delegated actions.
4.1.2 Statutory Instruments
Statutory Instruments: Rules and regulations made by government ministers. The significance lies in the effectiveness and timely response to evolving issues within their purview.
Ministers from approximately 15 different government departments create regulations pertaining to their areas of responsibility. This distribution of power allows for specialized and informed legislation.
Example: The Minister for Work and Pensions may issue health and safety regulations, reflecting specific industry needs.
Statutory Instruments can vary in length and detail; some may be concise updates, while others, like the Building Regulations 2010, may be extensive, consisting of multiple parts and schedules to provide comprehensive guidelines.
The number of statutory instruments made annually exceeds 3,000, highlighting the volume of legislative activity outside of Parliament's direct control.
4.1.3 By-laws
By-laws are created by local authorities to address issues within their areas, making legislation more relevant and effective at a community level.
A County Council can enact laws affecting the entire county, while a District or Town Council can only enforce laws within its jurisdiction, allowing localized governance.
Common applications of by-laws include traffic rules (e.g., parking restrictions) and regulations regarding public behavior (e.g., prohibiting drinking in public), tailored to specific community needs.
Public corporations and specific companies may also create by-laws (e.g., British Airports Authority enforcing rules at airports), demonstrating the broader applicability of by-laws in various contexts.
4.2 Control of Delegated Legislation
Given that delegated legislation often involves non-elected bodies, control is necessary and exercised through both Parliament and the courts.
4.2.1 Control by Parliament
Checks on the Enabling Act: Parliament establishes the initial control by defining the limits of the delegated powers within the enabling Act, maintaining oversight.
It states which minister can make regulations and the areas covered by the regulations; this clarity prevents overreach.
Parliament retains the authority to repeal enabling Acts at any time, functioning as a fail-safe against misuse of power.
The Delegated Powers Scrutiny Committee in the House of Lords assesses whether power delegation is appropriate, ensuring accountability.
Checks on Delegated Legislation:
Affirmative Resolution: Some statutory instruments require specific approval from Parliament to become law. If included in the enabling Act, these regulations must be approved before enactment, providing a check on potentially controversial measures.
Negative Resolution: Most statutory instruments are subject to a negative resolution, meaning they become law unless rejected by Parliament within 40 days, which offers a streamlined review process but raises concerns about the adequacy of scrutiny given the volume.
Questioning of Government Ministers: Ministers are accountable and can be questioned by MPs about their department's activities, including proposed regulations, promoting transparency.
Scrutiny Committee: The Joint Select Committee on Statutory Instruments examines all statutory instruments and highlights concerns for further Parliamentary consideration.
4.2.2 Legislative and Regulatory Reform Act 2006
This Act streamlines the process for making statutory instruments intended to repeal existing laws that impose burdens, aiming to enhance efficiency in the legal framework. A burden includes:
Financial costs
Administrative inconveniences
Obstacles to efficiency, productivity, or profitability
Sanctions affecting lawful activities
Ministers must consult affected organizations, the Welsh Parliament when applicable, and the Law Commission, ensuring stakeholder engagement in the legislative process.
4.2.3 Control by the Courts
Delegated legislation can be challenged in court based on claims of being ultra vires (beyond the powers granted in the enabling Act).
Key Term: Ultra Vires: When delegated legislation goes beyond the powers granted, rendering it invalid law, ensuring a legal safeguard against misuse of authority.
Judicial review allows challenging the validity of delegated laws. An example is R v Home Secretary, ex parte Fire Brigades Union (1995), where changes to the Criminal Injuries Compensation Scheme were declared beyond powers, reinforcing the boundaries of delegated legislation.
Courts assume delegated powers lack authorization for actions including:
Making unreasonable regulations (as illustrated in Strickland v Hayes Borough Council (1896)).
Levying taxes and allowing sub-delegation, which fundamentally undermines the legislative process.
Cases Illustrating Restrictions on Delegated Legislation:
Aylesbury Mushroom Case (1972): Minister's failure to consult represented organizations invalidated the order affecting mushroom growers but remained valid for others consulted, emphasizing the importance of proper procedure.
R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000): The High Court ruled the statutory instrument on teacher pay appraisal was ultra vires and followed an unfair consultation process, exemplifying judicial intervention to uphold legislative integrity.
4.3 Reasons for the Use of Delegated Legislation
4.3.1 Need for Detailed Law
Modern society requires numerous detailed regulations that Parliament cannot feasibly manage alone, necessitating a system that allows for specialized input.
Delegated legislation allows Parliament to maintain control via enabling Acts while experts draft specific regulations, enhancing both efficiency and efficacy in law-making.
4.3.2 Need for Expert Knowledge
Complex matters (e.g., technology regulations or environmental laws) necessitate experts, which Parliament may lack, ensuring laws are practically applicable.
Delegated legislation enables practitioners in the field to contribute effectively, aligning regulations with real-world conditions.
4.3.3 Need for Local Knowledge
Local councils can create by-laws reflecting the unique needs of their communities, tailoring laws to address specific local challenges that would overwhelm Parliament to address individually.
4.3.4 Need for Consultation
Technical accuracy often requires consultation with stakeholders before drafting regulations. For example, the Police and Criminal Evidence Act 1984 necessitates consultation with various parties before new Codes of Practice are implemented, underscoring the importance of collaborative law-making.
4.4 Advantages and Disadvantages of Delegated Legislation
4.4.1 Advantages
Saves Parliamentary Time: Delegated legislation allows Parliament to avoid extensive debates on every detail, letting it focus on broader issues.
Access to Technical Expertise: Complex matters benefit from expert insights, aiding in effective law creation, which may not be possible in full parliamentary sessions.
Allows Consultation: Better regulations emerge through preliminary consultation, especially necessary for technical subjects where stakeholder input is crucial.
Quick Law Making: Orders in Council can be enacted rapidly, especially in emergencies, ensuring legislative flexibility in critical situations.
Easy to Amend: Regulations can be amended or revoked without extensive parliamentary procedures, accommodating routine issues like adjusting the minimum wage in response to changing economic conditions.
4.4.2 Disadvantages
Undemocratic: Critics argue that law-making gets shifted from elected officials to non-elected bodies with limited oversight, raising concerns about accountability.
Risk of Sub-delegation: Law-making can shift to civil servants, who may merely be rubber-stamping decisions made by politicians, undermining legislative rigor.
Large Volume and Lack of Publicity: The sheer amount of delegated legislation complicates public understanding, as much of it is made in private without open debate, challenging transparency.
Difficult Wording: Similar to Acts of Parliament, delegated legislation may contain complex terms that are difficult to interpret, possibly creating barriers to access for the public.
Summary
Types of Delegated Legislation: Orders in Council, Statutory Instruments, By-laws.
Control by Parliament: Through specific enabling Acts, the Delegated Powers Scrutiny Committee, resolutions, and questioning ministers.
Judicial Control: Through judicial review for cases of ultra vires and procedural failures to ensure compliance with legislative intentions.
Reasons for Delegated Legislation: To fulfill needs for detail, expert and local knowledge, and the requirement for consultation to create effective and applicable laws.
Advantages: Efficiency in law-making, expert input, and adaptability to fit societal changes to meet emergent needs.
Disadvantages: Concerns regarding democratic legitimacy, complexity, and potential obscurity in legislative clarity, highlighting the balance needed in legislative development.