Delegated Legislation

Delegated legislation is law that is not made by parliament but under it’s authority. Authority is usually given in a ‘parent’ Act of parliament known as an enabling Act. This Act creates the framework of the law and then delegates power to others to make more detailed law in the area.

Examples of enabling Acts are the Local Government 1972, which allows local authorities such as district and county council to make by– laws, and the Access to Justice Act 1999, which gives the Lord Chancellor wide powers to alter aspects of the system of state funding legal cases.

Most common type of delegated legislation. There were 3117 Statutory Instruments made in 2011.

Authority is given to ministers and government departments to make detailed regulations for their area of responsibility, for example, the Minister of Transport has the power under various Road Traffic Acts to make detailed road traffic regulations. Under the terms of the Road Traffic Act 1998, the Traffic Signs Regulations 2002 were made which regulate the size and colour of road signs.

Regulations are a good way of updating primary legislation and adapting the law to changing circumstances. For example, the Health and Safety Work Act 1974 has been updated through the Management of Health and Safety at Work Regulations 1992.

Statutory instruments are used to implement European Union directives in English Law. An example is the Unfair Terms in Consumer Contracts Regulations 1994, which implemented a directive aimed at giving greater protection to consumers.

They are also used to bring an Act of Parliament, or parts of it, into effect by means of a Commencement Order. For example, the Equality Act 2010 was brought into effect in stages by five Commencement Orders.

Orders in Council are made by the Queen and Privy Council and can be used for a wide variety of purposes, for example the regulation of certain professional bodies.

They are used when an ordinary statutory instrument would be inappropriate, for instance when transferring responsibilities between government departments.

Orders in Council were use to transfer powers from ministers of the UK government to ministers of the devolved assemblies in Scotland and Wales.

They are used to dissolve Parliament in preparation for a General Election and sometimes to make specific law changes, as under the Misuse of Drugs Acts 1971 to reclassify cannabis. They are also used to give effects to European directives under s.2(2) of the European Communities Act 1972.

In  times of emergency, when Parliament is not sitting, an Order in Council can be made under the Emergency Powers Act 1920 and the Civil Contingencies Act 2004. these powers were used during the foot and-mouth crisis in 2001, when decisions needed to be made quickly to try to prevent the spread of the disease. They were also used during the fuel crisis of 2000.

These are laws made by local authorities and other public bodies such as London Transport and the Airports Authorities.

Local authorities, such as county councils, district councils and parish councils, can make by-laws about the use of libraries in the county. The introduction of the congestion charge zone in central London is another example.

Public corporations and certain companies can also make by-laws to help to enforce rules concerning public behaviour; the London Underground ban on smoking is an example. Another example is the National Trust Act 1907, under which the National Trust has the power to make by-laws affecting  National Trust property.

All by-laws must be approved by the relevant government minister.

Professional regulations also come under delegated legislation, such as those found in the Solicitors Act 1974 empowering the Law Society to regulate the conduct of its members.

Limited parliamentary time– parliament has limited time to pass law– government will push it’s own major legislation.

Local knowledge– parliamentary cant deal with needs of local people. Politicians called councillors are elected by local people to run local authorities.

Specialisation- MPs cant be experts in everything. Sometimes law need professionals.

Fast Response– delegated legislation can be bought I quicker than Bills.

Future needs– delegated legislation can be used to amend legislation more quickly and more effectively.

As delegated legislation in many instances is made by non– elected bodies and, since there are so many people with the power to make delegated legislation, it is important that there should be some control over delegated legislation.

Control is exercised by Parliament and by the courts.

There may sometimes be a Public Enquiry before a law is passed on an especially sensitive matter, such as planning laws which may affect the environment.

Parliament has some control at the time an enabling Act is made, as it sets the limits for making delegated legislation under that Act.

The Delegated Powers Scrutiny Committee in the House of Lords can decide whether the provisions in a Bill to delegate legislative power are inappropriate. Its report is presented to the House of Lords before the committee state but it has no power to amend the Bill.

Some enabling Acts require an affirmative resolution from parliament before the delegated legislation can become law . The delegated legislation has to be laid before both Houses and it only becomes law if a vote to approve it is taken within a specified time. For example, under the Criminal Justice and public Order Act 1994 the minster is allowed to make regulations to control sales by ticket touts at sporting events but only if such regulations are specifically approved by Parliament. Under the hunting Act 2004, the minister may allow hunting with dogs in some circumstances as long as parliament consents.

Delegated legislation is subjective to a negative resolution. The delegated legislation is put before Parliament and if no member has put down a motion to annul it within the specified period (usually 40 days) it becomes law.

The joint Committee on Statutory Instruments, with members from both Houses of Parliament (Scrutiny Committee), reviews all statutory instruments and can draw the attention of parliament to any that need special consideration. The committee has no power to alter the legislation as it merely reports back on its finding, but it does provide a check of delegated legislation.

Unlike Statue, the validity of delegated legislation can be challenged in the courts. Any individual who have a personal interest in the delegated legislation may apply to the courts under the judicial review procedure.

The delegated legislation will be invalid if it is ultra vires (goes beyond the power granted by Parliament). If it is found ultra vires, the delegated legislation is declared void and ineffective.

This can be in the form of procedural ultra vires, where a public authority has not followed the procedures set out in the enabling Act for creating delegated legislation. In Agricultural Horticultural and Forestry Training Board v Aylesbury Mushrooms Ltd (1972), failure by the Minister of Labour to consult interested parties as required by the Act led to the order being declared invalid.

A claim of substantive ultra vires occurs where the delegated legislation foes beyond the powers granted by the enabling Act. In AG v Fulham Corporation (1921) an Act allowed local authorities to set up clothes washing facilities for people to use, the Corporation set up a laundry to do people’s washing for them and therefore went beyond it’s power.

A decision made may also be consider unreasonable. This may be because the rules are unjust, are made in bad faith or are so perverse that no reasonable person would have made them. In STRICKLAND V HAYES a by-law prohibiting the singing of obscene songs was too widely drawn so that it prohibited the singing of such songs in private as well as public places– unreasonable.

Time– it saves parliament’s time. There is not enough time for Parliament to consider every detail of every regulation and rule. Delegated legislation frees parliament to concentrate on broad issues of policy rather than masses of detail. More than 3000 Statutory Instruments are passed every year. For example, the Road Traffic Act 1972 provided that motor cyclist had to wear helmets, but the details were left to the minister to publish in the Motor Cycles (Protective Helmets) Regulations 1980.

Expertise– Parliament does not have the knowledge of technical expertise necessary in certain areas, such as building regulations or health and safety regulations at work. Delegated legislation allows the use of experts  in the relevant areas to make the rules, as for example in drawing up the Air Navigation Order 1995 which contains complex technical regulations about civil aviation.

Responsive to needs– delegated legislation can be achieved more quickly than an Act of Parliament. It can also be amended more quickly if circumstances change, allowing flexibility. Orders in Council can be used in emergencies when Parliament is not sitting fro example during the foot– and-mouth crisis of 2001.

Local people know local needs. As a resul- Local authority by-laws are often more appropriate than board and general national legislation. For example, Cornwall County Council was the best authority to make rules for libraries in Cornwall under the Public Libraries and Museums Act 1964.

Delegated legislation is easily revoked if it causes problems. An Act of Parliament requires another Statute to amend or revoke it, which takes much longer.

Undemocratic– since they do not have to go through the full Parliamentary process and can be implemented by a single government minster.  Also undemocratic as much of it is made by unelected people rather than parliament.

Sub–delegation– in a lot of cases the regulations are actually made by civil servants rather than the minister who takes overall responsibility. This makes the process even less democratic.

Large volume– the large amount of delegated legislation makes it difficult to keep track of the current law.

Limited control– the negative resolution procedure means that most Statutory Instrument pass into law without notices as busy MPs have other concerns. The scrutiny  Committee has no power to reject legislation and cannot refer it back for bring bad legislation-it looks at technicalities only. The process of Judicial Review depend  on a challenge being made, is subject to courts costs and is limited in a similar way to the Scrutiny Committee.

There is little publicity compared to that received by Acts of Parliament, so people may be unaware that a particular piece of legislation exist.

Civil servants are unaccountable to the electorate.