Delegated Legislation (5)

  • Created by: JM150601
  • Created on: 23-09-18 15:54

What is Delegated Legislation

Delegated Legislation is Legislation that is made by someone other than Parliament, but with the authority of Parliament. This authority is usually laid down by a ‘parent’ or ‘enabling’ act.

An example of an enabling act is the disability discrimination act 1995 which gave the Secretary of State powers to make regulations.

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Reasons for Delegated Legislation

It would be impossible for Parliament to enact every minor detail of the legislation that it wished to pass and that is the reason it gives powers to other bodies to enact subsidiary legislation under its authority.

The main reason for delegated legislation is that it saves Parliamentary time. It is particularly useful when the matter at hand is either very detailed or very complicated.
The enabling act will create the framework for the legislation and the delegated devise the detail.

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Types of delegated Legislation

There are 3 different types of delegated Legislation:

  • Orders In Council
  • Statutory Instruments
  • By-laws
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Orders in Council

The Queen and the Privy Council have the authority to make orders in Council. The privy council is made up of the Prime Minister and other leading members of government. Orders in Council are usually used in emergency situations when Parliament is not sitting.

The government issued orders in Council empowering highway authorities to close public rights of way to help prevent the spread of foot and mouth disease.

Orders in Council are also used when statutory instruments would not be appropriate like when transferring responsibilities between government departments.

The Privy Council has the power to make laws in emergency situations. This would usually happen when Parliament is not sitting.

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Statutory Instruments

This is laws made by government ministers under the authority of a parent act called 'regulations' or 'orders'. They affect the area for which the minister is responsible for and are drafted by the legal department in that ministry. It is the major method of law making.

Ministers and government departments are given authority to make regulations under their particular responsibility. There are about 15 departments in the government. Each one deals with a different area of policy and can make rules and regulations in respect of matters it deals with.

Statutory instruments can be very short, covering one point such as the annual change to the minimum wage.

Statutory Instruments are the most common form of delegated legislation

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Local authorities are given powers by act of parliament to make by-laws. The bylaws only apply within their own geographical location. Many such by-laws relate to traffic-control.

Other by-laws maybe for such matters as banning drinking in public places or banning people from riding bicycles in the local park. Bylaws can also be made by public corporations and certain companies for matters within their jurisdiction, which involve the public. This means that a body such as British airports authority and the railway is can enforce rules about public behaviour on their premises.

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Relationship between primary and delegated

Primary legislation (an act of Parliament) can enable (give authority to) I delegated legislation of which there are three main types: orders in Council, statutory instruments and by-laws

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Control of delegated legislation

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 the courts. In addition there may sometimes be a public enquiry before a law is passed on an extra sensitive matter, such as planning laws which may affect the environment.

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Controls By Parliament (1)

1) The enabling act itself - Sets out limits on how delegated powers can be used and may specify procedures such as consultation or approval where it concerns a by-law. Parliament always has the option to revoke the parent act.

2) The doctrine of Parliamentary Supremecy - Parliament can amend or repeal any piece of delegated legislation (though it is limited).

3) Delegated Powers Scrutiny Committee in the House of Lords - Established in 1993 it scrutinies new bills as they go through parliament to check if the power is being delegated inappropriately. However it has no actual power to change the bill, only to point it out.

4) Most statutory instruments must be laid before parliament, and will be subjected to either the affirmative resolution procedure, or the negative resolution procedure.

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Controls by Parliament (2)

a) Affirmative Resolution - Requires the secondary (proposed) legislation to be put before Parliament so that it can be voted on. It is only used in limited number of situtations and the parent act must state that this resolution is sought before it. An example is PACE 1984.

b) Negative Resoluion - Requires the draft delegated legislation to be put before parliament but if no opposition is raised to the proposed legislation within a specific time (usually 30-40 days) the draft legislation becomes law.

5) Joint Select Committee on Statutory Instruments / Scrutiny Committee - Established in 1973 it reviews all statutory instruments and if necessary, will refer point that need further investigation / consideration to both houses. It only looks at technical issues no public policy. Main reasons to refer it back to Parliament includes: It imposes tax or charge; Appears to be making law that acts retrospectively; clearly goes beyond its powers as an enabling act; it is unclear or defective in some way. Even though it reports the problem, ministers might just ignore it and it has no further power to do everything/anything.

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Controls by Parliament (3)

6)The legislative and regulatory reform act 2006 - This act sets out procedures for making n statutory instrument to repeal an existing law in order to remove a 'burden' i.e. financial cost, uneffiecent. Any minister wanting to create an statutory instrument under the powers if this act must consult with organisations which are affected by the proposals, and the law commission where appropriate. Orders made under this act must be laid before parliament as a negative resolution, affirmative resolution or super-affirmative resolution.

7) Other froms of Parliamentary control - The minister involved/responsible for introducing a statutory instrument can be questioned on it by parliament during debates.

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Court Controls of delegate legislation (1)

Delegated legislaton can be challenged in courts (unlike primary legislation). It can be challenged on the basis that it is ultra - vires (goes beyond the powers given by parliament in the enabling act). Process of challenging a piece of legislation:

a) The challenge itself is brought before the court, and is called a judicial review,

b) The challenge can only be made by interested parties i.e. someone affected by it,

c) If found to be ultra - vires it is void and not effective.

Rv Home Secretary, ex pate Fire Brigades Union 1995 - Attempts by the home secretary to change the Criminal Injuries Compensation Scheme was unsuccessful as he went beyong his powers laid out in the Criminal Justice Act 1988, therefore held ultra - vires.

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Court Controls of delegate legislation (2)

1) Substantive ultra - vires : This is where the desicion maker has gone beyond the powers given in the enabling act. Unless states that the enabling act allows it, the courts will assume that there is neve a power to, levy taxes, allow sub-delegation or make unreasonable regulation as in Strictland v Hayes Borough Council 1896 a by-law which prohibite the singing or recieting of any obscene snong or ballad, and obscene language, this was held to ultra - vires as it included acts done privately not just publically.

2) Procedural ultra - vires : This is where there has been a failure to follow the procedures set down in the neabling act, such as consultation i.e. Aylesbury Muschroom Case 1972.

Delegated legislation will also be considered ultra - vires if there has been a breach of ruse of 'natural justice' i.e. one of the parties was not allowed to put their side of the case.

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Advantages of Delegated Legislation

  • Saves Parliamentary time as they do not need to consider and debate every small detail of complex regulations.
  • Allows the provision of necessary technical expertise as parliament may not have the technical expetise or required knowledge.
  • Allows for consultation and Parliamentary scrutiny as ministers may have the benefit of further consultation before regulations are drwan up. Ensures effective and clear legislation.
  • Allows quick Law making which is beneficial because the process of passing an act of parliament can take a considerable amount of time and in emergencies Parliament may not be able to pass laws quickly enough. Orders in Council, can be made very quickly.
  • delegated legislation can be amended or revoked easily when necessary so that the more can be kept up-to-date. This is useful for things that change annually e.g. the minimum wage
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Disadvantages of Delegated Legislation

  • Not democratic as it gives law making powers to non - elected bodies.
  • another problem is that of sub-delegation, which means that the law making authority is handed down another level. This causes comments that much of a law is made by civil servants are merely rubbers stamped by the minister of that department.
  • No effective control over it i.e. Delegated powers Scrutiny Committee of the House of Lord only has the power to point out the problems but not to change it, therefore a degree of parliamentary time is required.
  • finally, delegated legislation shares with Axa parliament the same problem of obscure wording that can lead to difficulty in understanding the law.
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Why do we need delegated legislation?

1) There is a shortage of Parliamentary time; in 2013 parliament passed 33 Acts of Parliament but 3291 delegated legislation was passed.

2) Parliament has a lack of technical expertise and lack of local knowledge, therefore it is better for Parliament to discuss the main principles and leave the details to those whith expert knowledge.

3) Ministers have the opportunity for further consultation which is important when dealing with technical matters.

4)Some enabling acts stipulate that consultation must take place before a regulation cn be created (i.e. discussion with interested parties before police Codes of Practice are amended under PACE 1984)

5) Legislation takes time to pass and in an emergency Parliament may not be able to pass a law quickly enough - needs to allow ministers to respond quickly to unforseen situations.

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How does parliament delegate its law making functi

Delegated Legislation can only be made with the authority of Parliament;

1) Parliament creates the enabling act/parent act,
2) The enabling act created the framework of the law,
3) and delegates power to others to make the law more detailed.

Enabling Act/Parent Act:

  • It will have to go through the usual stages of becoming an act - Houses and Royal Assent.
  • It contains a framework of the new law but allows some other body such as Government ministers or the local authority to add the detail to this framework.
  • The parent act is usually very clear as to what law can be made and any procedures that have to be followed - Aylesbury Mushroom Case 1972.
  • The person or body given the power has best knowledge and resources to make the type of law.
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