AQA AS Law - Delegated Legislation
Key terms checklist, specification, explanations, cases, exam tips
Key Terms Checklist
- Affirmative resolution
- Delegated Legisation
- Enabling Act
- Negative resolution
- Orders in Council
- Procedural Ultra Vires
- Scrutiny Committeew
- Substantive Ultra Vires
- Ultra Vires
Specification - what they expect of you
Statuatory Instruments; Orders in Council; By-laws (Local Authority and other bodies).
Reasons for delegating powers.
Parliamentary and judicial controls on delegated legislation.
Advantages and disadvantages of delegated legislation.
What is Delegated Legislation?
Delegated Legislation is laws made by some organisation or body other than Parliament but with the authority of Parliament.
There are many reasons for delegating legislation:
- Saves Parliamentary time
- More detailed than an Act of Parliament
- Can be made quickly and is flexible
- Uses expertise of specialist departments
The Parent (or enabling) Act
An Enabling Act is an Act of Parliament which gives power to other bodies to make laws or rules. The law then made is known as Delegated Legislation.
Examples of Enabling Acts are:
- Police and Criminal Evidence Act 1984
- Civil Procedure Act 1997
Orders in Council
Orders in council are made by the Queen and Privy Council. Orders in Council allow the government to make law when Parliament is not sitting and there is a need for law as an emergency.
They are drafted by the Government and given formal approval by the Queen and the Privy Council.
Examples of Orders in Council are:
- Dissolving Parliament before an election
- Bringing an Act of Parliament into force
- Foreign affairs (e.g. Afghanistan Order 2001 making it an offence to make funds available to the Taliban or Osama Bin Laden)
Statuatory Instruments are rules or regulations made by Government Ministers under the authority of an Enabling Act.
They are drafted by the legal department of the relevant Government department.
Examples of Statuatory Instruments are:
- Updating law (e.g. regular increase of minimum wage under the National Minimum Wage Act 1998)
- Commencement Orders - these orders specify when an Act or part of an Act must come into force.
- Laws made in order to comply with EU directives (e.g. Unfair Terms in Consumer Regulations 1999)
By-laws are made by local councils for the area covered by that council or by certain public authorities to cover their field of operation. They must be confirmed by the relevant Government Minister and are enforceable in the courts.
Examples of By-laws are:
- By-laws made under the Dogs (Fouling of Land) Act 1996
- By-laws restricting smoking on trains and stations
Resolution Procedures (Statuatory Instruments ONLY
Affirmative Resolution Procedure - Only a small number are subject to this. This means that the Statuatory Instrument will not become law unless specifically approved by Parliament (usually 40 days).
Negative Resolution Procedure - The majority are subject to this. This means that the Statuatory Instrument becomes law unless rejected by Parliament within 40 days of being laid before Parliament.
The affirmative resolution procedure is not used mainly due to the fact it defeats the point of Delegated Legislation (to save time).
Control of Delegated Legislation - Parliament
- Enabling Act - sets limits
- Parliament can repeal or amend any Delegated Legislation
- All Delegated Legislation (including By-laws) are made under the authority of Government Ministers
- Scrutiny Committee reviews Statuatory Instruments
- Affirmative/Negative resolution procedure
- Statuaotry Instrument Act 1946 requires all Statuatory Instruments to be published
- Ministers can be held accountable at Question Time or during debates
- Parliament can remove the power to make Delegated Legislation.
Control of Delegated Legislation - Judiciary
- Procedural Ultra Vires - Where Delegated legislation is rule ultra vires by the courts because the correct procedure has not been followed.
- Substantive Ultra Vires - Where Delegated Legislation has gone beyond the power it was given in the Enabling Act.
- Unreasonableness - Where the Delegated Legislation is void because it is so unreasonable.
- Other cases where Delegated Legislation can be declared void is where it levies taxes, allows sub-delegation, and where it conflicts with European Legislation.
Advantages and Disadvantages of Delegated Legislat
Advantages - Saves time, flexible, made by people with local and technical expertise, control of Delegated Legislation and it is, to an extent, democratic.
Disadvantages - To an extent undemocratic, lack of effective control, lack of publicity, some Delegated Legislation offends Separation of Powers and there is a risk of sub-delegation.
Procedural Ultra Vires - Aylesbury Mushroom Case (1972): An order was declared void against mushroom growers because a letter informing the Mushroom growers Association of the new law did not comply with the requirement in the Parent Act to consult interested parties.
Substantive Ultra Vires - A-G v Fulham Corporation (1921): The Parent Act gave the Corporation power to provide clothes washing facilities for the public. In 1920 the Corporation set up a commerical laundry where the council employees washed the residents clothes. This was held to be ultra vires because the Enabling Act did not give authority for the corporation to wash clothes for others.
Unreasonableness - R (Rogers) v Swindon NHS Trust (2006): A woman with early-stage breast cancer was prescribed Herceptin by her doctor. The NHS Trust refused to provide this non-approved drug because (it said) her case was not exceptional. The Court of Appeal said this policy was irrational and unreasonable and therefore unlawful. The Trust was unable to put forward any clear reasons for providing the drug for some patients and not for others.