Delgetaded legislation

Delegated Legislation

1. Introduction to Delegated Legislation

  • Delegated legislation is law created by bodies or individuals other than Parliament, authorized by Parliament.

  • Common bodies involved in creating delegated legislation include:

    • Privy Council

    • Government ministers

    • Local authorities

    • Certain designated companies

  • The creation of delegated legislation occurs under checks and controls established due to the powers being delegated to unelected entities.

2. Parent Act

  • The process starts with a Parent Act (also called an enabling Act), which grants the authority for creating delegated legislation.

  • The Parent Act outlines the framework within which more detailed laws can be created.

  • Example of an enabling Act:

    • Police and Criminal Evidence Act 1984: This Act provides authority for creating Codes of Practice related to police powers.

3. Types of Delegated Legislation

3.1 Orders in Council

  • Orders in Council are made by the Queen and the Privy Council, consisting of the Prime Minister and leading government members.

  • Allows legislation to be enacted without parliamentary debate or vote.

  • Areas where Orders in Council can be applied:

    • Transferring responsibilities between government departments (e.g., creation of the Ministry of Justice).

    • Bringing Acts of Parliament into force.

    • Enacting laws during emergencies (Civil Contingencies Act 2004).

  • Example:

    • Misuse of Drugs Act 1971 was amended through an Order in Council to downgrade cannabis in 2003; however, it was upgraded back to Class B in 2008 due to its perceived negative impact.

3.2 Statutory Instruments

  • Statutory instruments are rules and regulations created by government ministers under the authority of enabling Acts.

  • Each government department has a specific jurisdiction and corresponding legislative power.

  • Examples of statutory instruments:

    • The Chemicals (Hazard Information and Packaging for Supply) Regulations 2009 under powers from the European Communities Act 1972 and the Health and Safety at Work etc. Act 1974.

    • Police Codes of Practice established under the Police and Criminal Evidence Act 1984 by the Lord Chancellor.

  • Statistical data:

    • In 2014, 3481 statutory instruments were made; by 2019, this number reduced to 1410.

  • Example:

    • Air Navigation (Restriction of Flying) (Streatham) (Emergency) Regulations 2020 imposed restrictions on flying in an emergency.

3.3 Bylaws

  • Bylaws are regulations made by local authorities pertaining to their specific areas.

  • Types of councils:

    • County councils can pass bylaws for the entire county.

    • District or town councils can create bylaws for their specific districts or towns.

  • Common uses of bylaws:

    • Traffic control (e.g., parking restrictions).

    • Public behavior regulations, such as prohibiting drinking in public or cycling in parks.

  • Bylaws may also be enforced by public corporations (e.g., British Airports Authority).

4. Legislative and Regulatory Reform Act 2006

  • Delegates further powers to ministers to enact provisions that remove or alleviate burdens caused by legislation.

  • Defined burdens include:

    • Financial costs

    • Administrative inconveniences

    • Obstacles to efficiency or profitability

    • Sanctions affecting lawful activities.

  • Ministers must consult groups affected by proposed changes, such as the Confederation of British Industry or the Welsh Parliament.

  • Orders made under this Act must be presented before Parliament for scrutiny.

  • Procedures for parliamentary consideration:

    • Negative resolution procedure

    • Affirmative resolution procedure

    • Super-affirmative resolution procedure (additional scrutiny by committees or resolutions).

5. Parliamentary Controls on Delegated Legislation

5.1 Initial Parliamentary Control

  • Enabling Acts delineate boundaries for delegated legislation, including which ministers may create regulations and which areas they may govern.

  • Parliament retains the power to repeal enabling Acts, thereby ceasing further delegation.

5.2 Delegated Powers Scrutiny Committee

  • A House of Lords committee that reviews provisions of Bills delegating legislative power, reporting findings prior to the Committee Stage but cannot amend Bills.

5.3 Pre-Drafting Consultation

  • Government departments can consult with interested parties before drafting regulations, though not required to do so.

5.4 Scrutiny Committee

  • Joint Select Committee that examines statutory instruments, highlighting necessary points for further parliamentary consideration.

  • Review grounds include:

    • Imposing taxes or charges (exclusive to elected bodies)

    • Retrospective effects unanticipated by the enabling Act

    • Exceeding powers granted by the enabling Act

    • Lack of clarity or defects.

5.5 Affirmative Resolutions

  • Some statutory instruments must receive explicit parliamentary approval before enactment.

  • Only allow for approval or annulment — no amendments.

5.6 Negative Resolutions

  • Commonly applied to statutory instruments where they become law unless Parliament rejects them within 40 days.

5.7 Questioning

  • Parliament may question individual ministers about departmental activities, including proposed regulations.

6. Court Controls on Delegated Legislation

  • Delegated legislation may be challenged on grounds of being ultra vires (beyond granted powers).

6.1 Judicial Review and Locus Standi

  • Challenges must be made in the Queen's Bench Division of the High Court by a person or body with locus standi (interest in the proceedings).

  • If deemed ultra vires, the legislation is declared void.

  • Types of ultra vires:

    • Procedural ultra vires: Incorrect procedural adherence.

    • Example: In Agricultural Horticultural and Forestry Training Board v Aylesbury Mushrooms Ltd (1972), a minister's failure to consult a major representative body rendered the order invalid.

    • Substantive ultra vires: Content exceeds limits of the Parent Act.

    • Example: In R v Home Secretary, ex parte Fire Brigades Union (1995), the court ruled changes to the Criminal Injuries Compensation Scheme exceeded powers.

  • Unreasonableness: Declared if a decision is made that is irrational or not justifiable as per the Wednesbury reasonableness standard.

    • Example: R (Rogers) v Swindon NHS Trust (2006) ruled an NHS Trust's refusal of a prescribed drug was irrational.

7. Evaluation of Delegated Legislation

7.1 Advantages

  • Delegated legislation can be time-efficient and swift to amend.

  • It allows experts to focus on detailed regulations specific to certain domains without political debate bogging down essentials.

  • Flexibility is provided for responding swiftly to emergencies or unforeseen circumstances.

  • Parliamentary and judicial controls help mitigate potential abuses of power.

7.2 Criticisms

  • It removes law-making from the elected House of Commons, allowing unelected individuals to legislate.

  • Sub-delegation leads to further delegation of authority, sometimes without adequate oversight from Parliament.

  • The significant volume of delegated legislation complicates the understanding of existing law.

  • Ambiguous or obscure wording in delegated legislation can lead to increased reliance on judicial interpretation.