Delegated Legislation

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Delegated Legislation

Delegated Legislation is a law made by other bodies that parliament. The bodies can only make law in their own area.

Parliament passes the power to the other bodies in what is known as an enabling act.

The reason parliament passes its jurisdiction to other bodies is because parliament does not have the time to make all of the laws and therefore they can delegate the power to make legislation to other bodies such as government departments, local authorities and the Queen and Privy council. Those are the main bodies though there are also minor bodies that can be used lik airports or the London Underground.

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Why have delegated legislation?

-Parliament does not have the time to make all legislation
-The local authorities have knowledge of their own area and therefore the laws will be relevant to any problems they experience.
-The local authorities have their own expertise knowledge of laws that need making.
-Delegated legislation does not need to go through the process of passage of a bill and therefore is more efficient.
-In cases of emergency such as a war breakout or disease then the Qqueen and Privvy council can make emergency law.

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Types of Delegated Legislation

There are three types of delegated legislation; statutory instruments, byelaws and orders in council.

Statutory Instruments-Statutory instruments are laws that are made by government departments relating to that departments area of expertise e.g the department for education doesn't make law on health. There are arund 3,000 to 4,000 statutes made a year.

Byelaws- Local authorities and county councils can make local law by affecting only they area that they cover because they jabe the vital local knowledge. Byelaws can also be made by private companies as well such as the London Underground.

Orders in Council-Orders in council are laws that are made by the Queen and Privy council and these laws are made in emergency situations under the Emergency Powers act 1920. The Queen and Privy council can also make european law into UK law. When parliament is not in session the Queen and PRIVY Council take over the role.

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Court Controls of Delegated Legislation

Court controls take place after the delegated legislation has become acitve legislation by judicial review in the Queens Bench division of the High Court. Judicial review cannot take place unless someone with locus standii came forward and complained about delegated legislation. The judicial review must require proof that the body making legislation have gone beyond their powers they were granted in the enabling act.
Procedural ultra vires- This is when the minister or person in charge doesn't follow the procedure he must follow in accordance to the enabling act. Agricultural Training Board v Aylesbury Mushrooms.
Substantive Ultra vires- When the Minister or one in charge does not follow the powers they are granted e.g a minister for health makes legislation on education. R (ex parte the Fire Brigade Union) vs the Home Secretary. The Home secretary tried to change the criminal injuries compensation scheme.
Unreasonable regulations- When a minister makes a decision the no reasonable person would such as no under 15's in the cinema on Sunday. Wednesbury Corporation v Associated Picture Houses.
Inconsistency with Human rights- Where a body or individual breaches an individual's human rights. R (Bono) v Harlow DC. The defendant was denied the right to a fair trial.

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Parliamentary Controls

-Parent/Enabling Act- Written instructions by parliament of they body's powers. The enabling act can't change legislation merely affirm or annul it.
-Scrutiny Committees-These committees scrutinise  a piece of delegated legislation especiallty in relation to money.
-Parliamentary Question time- The oppurtunity for MP's to question proposals in an enabling act.
-Revocation- Parliament can revoke any delegated powers e,g Northern Ireland had an SI revoked in 2002.
-Affirmative resolution- This is a control on statutory instruments and it is where both the House of Commons and the House of Lords must approve the SI before it can become law. The SI is laid before parliament for the house to agree to. Parliament cannot amend the SI only annul or affirm it.
-Negative resolution- Negative resolution also only applies to SI's. The SI is placed in parliament and has a 40 day limit. If nothing is said within 40 days then the statute becomes a legislation on the end of the 40th day. If this is applicable it will be in the enabling act.
-Ouster clauses- Also known as Henry the 8th clauses. These can be found in enabling acts and have the power to repeal or ammend any acts of parliament without parliamentary invokement.

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Evaluation of delegated legislation

Advantages
-
Saves parliamentary time as there is no passage of a bill
-Those who make the legislation have expert knowledge
-Local authorities know what needs doing in their area
-Emergency laws can be made to protect us in emergencies such as war breakout

Disadvantages
-Those who gain power through sub-delegation aren't elected in and therefore this removes an aspect of democracy
-Those who are granted power by sub-delegation are controlled less by parliament
-There is constantly a change in law. 3,000-4,000 additions of law a year.
-Lack of publicity in law changes mean that there is potential for someone to be offending without knowing.

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