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Using examples describe two forms of delegated legislation (10 marks)
Delegated legislation means permitting bodies below parliament to pass legislation the three
main forms of delegated legislation are; bye laws, statutory instruments and orders in council.
The main form of which delegated legislation is passed is statutory instruments, these are
rules and regulations created by the government ministers (cabinet ministers) acting under the
delegated power of the enabling act. Cabinet ministers have areas in which they expertise in or
have responsibility for, for example health/transport/education. Cabinet ministers are high
ranking members of parliament representing an executive branch of government members. The
enabling act gives the ministers guidance on how the new piece of legislation is to be written
and processed. The statute will usually be drafted by the legal department of the minister
Under statutory instruments the minister for transport will be able to deal with necessary road
traffic regulations and the health and safety executive may use a statutory instrument to
change safety law, this type of law making gives departments immense freedom to change the
law and as a result 3,000 statutory instruments are brought into force every year.
Bye laws can be made by local authorities/bodies or certain other public co operations and
companies concerning areas within their scope of responsibility County councils can make laws
for the whole country however district councils are restricted for making law only in their
town or city. Bye laws are usually created when there is no general legislation that deals with
an area of concern within that town or district.
Local bye laws usually affect matters such as traffic management, libraries or parking for
example; public bodies such as the British Airport authority and the railways can enforce
rules/laws about public behaviour on their premises. Another example of a bye law is the ban
on smoking on the underground system in London.
Briefly explain the controls on delegated legislation (10 marks)
Initially, Parliament has control in that the enabling or parent Act passed by Parliament sets
out the framework or parameters within which delegated legislation is made. In addition, there
are scrutiny committees in both Houses of Parliament whose role is to consider the delegated
powers proposed by a Bill. However, these committees have limited power. European legislation
is considered by a specific committee and local authority byelaws are usually subject to the
approval of the Department of the Communities and Local Government. All SIs are subject to
review by the Joint Committee on Statutory Instruments. Some SIs must be approved by
Parliament before they can become law. This is known as affirmative resolution. Others are
subject to negative resolution, which means that the SI will become law unless it is rejected
within 40 days of being laid before Parliament.
Delegated legislation is also subject to control by the courts whose judges can declare a piece
of delegated legislation to be ultra vires. Ultra vires means `beyond powers', so the court
would be saying that a piece of delegated legislation went beyond the powers granted by
Parliament within the enabling Act. If the court does this, then the delegated legislation in
question would be void and not effective.
There are two types of ultra vires:
Procedural ultra vires is where the enabling Act sets out the procedural rules to be followed
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The court can find the delegated
legislation to be ultra vires and void if these rules were not followed.
In the Aylesbury Mushroom case (1972) Agricultural Horticultural and Forestry Industry
Training Board v Aylesbury Mushrooms Ltd (1972) serious failure to comply with a
mandatory request e.g failure to consult. Therefore, the delegated legislation was declared to
be ultra vires on procedural grounds. Also substantial ultra vires where the delegated
legislation goes beyond what parliament intended.…read more