Delegated legislation

What is delegated legislation?

Where Parliament hands over its powers to create laws to some other person/body e.g. Minister/ Local Authority.

Parliament will pass a statute called an Enabling Act.

What’s an Enabling Act?

It lays down the basic framework of the proposed law and gives others the authority to make more detailed law that will help implement the Act.

If they don’t follow the terms and conditions then any law made may be declared as ultra vires.

Why is this delegation of authority necessary?

1. Too little time in Parliament to debate every detail in a statute so better statute lays down broad principles allowing subordinate bodies to fill in details.

2. Creating statute is a slow business as Parliament isn’t always in session. So if state of emergency arises then Government act quickly and by-pass slow Parliamentary procedures.

3. Parliament lacks knowledge to deal with technical and detailed aspects that are found in many Acts of Parliament. Such laws are best dealt with by delegating law making powers to individual ministers who are advised by experts.  

4. One statute passed, can only be revoked/amended by another statute. With Parliamentary legislation this would be a long so delegated legislation is more flexible and quicker, so if statute needs amending quickly then delegated legislation is the best way to deal with it.

Main types:

Order in Council

By laws

Statutory instruments

1. Orders in Council.

• Where Monarch appears to exercise true political powers.

• It’s an ability of the Crown to pass laws without participation of parliament.

• Issued by Privy Council- who present draft of any proposed legislation to Her Majesty who signs draft to implement.

• Used in national emergencies/transfer responsibilities from Parliament to another government body e.g. Welsh Assembly Government (can pass laws: assembly measures e.g. environmental, education and social welfare).

• Amend law and give effect to EU law e.g. Misuse of Drugs Act 1971 (Modification) (No.2) Order 2003 downgraded cannabis from Class B to Class C drug.

Statutory Instruments.

• Most common. About 3000 issued each year (only 60-70 Acts of Parliament passed each year).

• Many directly related to European law and reflect law making powers of developed bodies on Wales and Scotland.

• Created by ministers in charge of Government department which only affect their particular development.

• e.g. Road Traffic Act givens Minister for Transport the power to make laws regarding road traffic like speed limits on motorways.

• Drafted by legal office of relevant government department who will consult with interested bodies and parties.

• Made via affirmative resolution/negative resolution, which are part of parliamentary controls on delegated legislation.

By Laws-

• Created by local authorities and public corporations like British Rail and British Airports Authority.

• Usually concern local issues/matters relating to their area of responsibility e.g. County Councils make byelaws that affect whole country whilst district/town councils make byelaws for particular district/town- laws made with awareness of needs of locality.

• Provided they have authority from central government, they can make laws for own areas of activity e.g. ban on smoking on London Underground System.

Boddington v British Transport Police (1998)

British Rail made a byelaw under s.67(c) of Transport Act 1662 prohibiting smoking where ‘no smoking’ notices were displayed subsequently introduced total ban on some trains and displayed notices to this effect.

A smoker A defied prohibition, he was convicted and fined £10 by stipendiary magistrate and appealed on grounds that byelaw was unreasonable and invalid.

Dismissing appeal, Lord Irvine LC said a ban on smoking in all railway carriages is a way of regulating use of railway, and British Rail had not exceeded their powers.

1. Concern in some quarters as to what they see as law making process moving away from elected representatives into hands of an unelected bureaucracy (government).

2. Bodies granted powers to create law may abuse position and exceed powers given to them by Parliament- Ultra Vires.

Danger us Sub-delegation. Parliament delegating its lawmaking powers to subordinate body and in turn subordinate body delegated powers to another body.

Emergency Powers (Defence) Act 1939

Act authorized creation of regulations. These regulations authorized creation of orders, the orders authorized creation of directives issued licences. So legislation was enacted four stages from original statute-raises concern that being so a removed from parent statute the original intention of Act may be lost.

 D. Sometimes authority is delegated to minister to modify statute so as to bring it into  operation. May mean widening/narrowing scope of legislation-role of parliament being conferred onto single minister.

      E. Sheer bulk of delegated legislation prevents it being reported accurately. When never law is created by Parliament it is often reported in press; but so many S.I. issued each year that few are reported.

Since ignorance of law is no excuse this could mean someone could be guilty of offence even though they didn’t know they were breaking the law.

1. Pre Drafting Consultation-

• before any piece of delegated legislation is implemented it is usual for minister to consult with advisory bodies and other groups who are likely to be affected by proposed legislation.

• e.g. if minister introduced road traffic legislation he would consult local authorities, surveyors, police, AA and RAC and motor manufacturers- sometimes Enabling Act makes consultation obligatory. If consultation is inadequate then any  delegated legislation which is made will be invalid on grounds of ultra vires (Aylesbury Mushroom case).

Control by Parliament- (Parliamentary)

1. Enabling Act may require any delegated legislation created under it shall be inspected by Parliament before implementation- most statutory instruments when inspected by Parliament will be subject to either:

           (i) Affirmative Resolution- means Parliament must approve S.I. before it becomes law.

           (ii) Negative Resolution- S.I. become law without Parliament considering it, and will become law unless Parliament rejects within 40 days.

      b) House of Commons found it difficult to debate all S.I. in fashion outlined above becausejlack of time.

Therefore a number of committees have been created to investigate S.I. most important being Joint Committee on S.I. that consists of 7 members from each House. This committee may take oral/written evidence from responsible Government department that made S.I.

Legislative and Regulatory Reform Act 2006- Act gives Government wide powers to make delegated legislation. Allows Ministers to issue Statutory instruments to amend legislation. Act controversial (seen to be Enabling Act removing constitutional restriction on Executive introducing and altering laws without assent by Parliament).

Control by the Courts-

• D.I. may be reviewed by courts (Judicial Review) and declared invalid.

• Judicial Review can be made on 3 grounds:

1. Ultra vires.

• Because of doctrine of Parliamentary Sovereignty courts can’t declare Act of Parliament invalid.

• However, can declare D.I. is ultra vires- Latin phrase meaning ‘beyond their powers’.

• So, if D.I. gone beyond power given to it by Enabling Act then courts can declare void.

Bromley LBC v GLC 1982

Transport (London) Act 1969 provided that GLC had general duty for provision of ‘integrated, efficient and economic transport facilities for Greater London’. GLC reduced fares by 25%. Bromley LBC claimed this was invalid and House of Lords greed that it was ultra vires the 1969 Act.

Hook v Barnsley Council (1976)

Stall holder caught urinating in public near stall and had stall taken away. Took council to court and won because councils regulations ultra vires.

1. Test of unreasonableness to D.I.

• Most commonly by-laws.

• Unless Enabling Act specifically says no by-law can make regulations which are manifestly unjust, no by-law can sub-delegate nor interfere with basic rights of citizens.

Strickland v Hayes 1986

A by-law prohibited singing/reciting of any obscene song and use obscene language generally. Court held that by-law was unreasonable because wasn’t limited to behaviour in public, as even using obscene language in private would be an offence under it.

1. Declare void.

• Courts declare any D.I. to be void if fails to follow procedure laid down by Enabling Act.

• Known as Procedural Ultra Vires. Procedures laid down in enabling Act for making Statutory Instrument have not been followed.

Agricultural Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd (1972.

Enabling Act requires interested parties to be consulted before making law. They weren’t and therefore correct procedure hadn’t been followed. Delegated legislation declared as procedurally ultra vires.

• Substantive ultra vires- delegated legislation goes beyond what Parliament intended.

Customs and Excise v Cure and Deeley Ltd (1962)

Tried to impose a tax and decide amount to be collected by this went beyond power conferred by Parliament.