Delegated Legislation

Delegated legislation is where Parliament gives law making powers to other bodies such as department ministers, local councils/organisations and the Privy Council. 

Orders in council are made by the Privy Council consisting of the PM, other cabinate ministers and the Queen.

Orders in council can be made very quickly and are often used in emergency situations under the "Emergencies Act (1920)" 

An example: "The Terrorist, Criminal and Security Act 2001" which was put into place just after 09/11

They are controlled through:
 - Enabling Act
 - Delegated Powers Committee
 - Joint Select Committee 

Statutory Instruments are made by department ministers who must follow the guidelines set out by the Enabling Act.

An example: "Police and Criminal Evidence Act S.66" - which set out the codes of practise for the Police force or "Chemicals Regulations Act (2006)" 

There are two types of Statutory Instruments:
 - Normal ones
 - "Burden Removing"

Normal S.I.'s Controlled by:
 - Affirmative Resolution
 - Negative Resolution
 - Parliamentry Control for ALL delegated legislation (enabling act, joint select committee, delgated powers        committee )

Burden Removin S.I.'s Controlled by
 - Affirmative Resolution Procedure 
 - Negative Resolution Procedure 
 - Super Affirmative Resolution Procedure
 - The Legislative and Regulatory Reform Act 2006 (Section 13) 

A Bylaw is made by a local authority or organisation under the "Local Government Act (1972)"

Examples include:
 - Car Parking Charges
 - Fines (for littering, dog mess, speeding etc)

-        Enabling Act – Sets out the guidelines for what and how far the law can cover certain subject matters

-        The Powers Delegation Committee – They make sure that the right power is going to the right people

-        The Joint Select Committee – Pick up on technical aspects (not political) and check the viability of the law

-        Affirmative Resolution – The Statutory Instrument must be accepted by both houses of Parliament

-        Negative Resolution  - This is where the Statutory instrument must be annulled within 40 days otherwise it becomes law

-        Affirmative Resolution Procedure – This is where both houses of Parliament must approve it or annul it, however they can request a super-affirmative resolution procedure

-        Super Affirmative Resolution Procedure– This is where extra advice needs to be retained from all organisations and parties that will be affected by the law

-        Negative Resolution Procedure  - This is similar to Negative Resolution but Parliament have 30 days to reject the S.I. from being put forward for another 40 days in the Negative Resolution.

1) Parliament does not have time to consider and debate every small detail of             complex regulations

 2) Parliament may not have the necessary technical skill and knowledge required        to make all laws

 3) Ministers can have the benefit of further consultation before regulations are            drawn up

 4) Passing an act can take a considerable amount of time, in an emergency                Parliament may not be able to pass a law quickly enough

Delegated Legislation is controlled by the courts via the Judicial Review Procedure where:

1) A peice of Delegated Legislation can be deemed ultra vires if it goes beyond the     powers of the enabling act

2) A peice of Delegated Legislation can be deemed unreasonable under the               principle of Wednesbury Unreasonableness

·        Strictland V Hayes Borough Council Case – A By law was passed stopping songs from being recited, sung if they had obscene language and a ban on obscene language as a whole. This was unreasonable under Wednesbury Unreasonableness

·        Aylesbury Mushroom Case – Changes were being made to the ways in which the mushrooms growers should train. The minister involved failed to notify the Mushroom Growers Association (which counts for 85% of the people affected). Because of this his law was deemed invalid.

·        Secretary of State V Nation Teachers Union – A high court judge ruled that the proposed increase in teachers pay (through a statutory instrument) was invalid as it went beyond the powers that the Education Act 1996 would allow. Ultra Vires!

-        It allows other non-elected bodies to make law (which is seen as undemocratic)

-        Much of our law is only made by civil servants and not through people elected

-        So much delegated legislation is made every year it’s hard to find out what present law is

-        Delegated legislation is also disadvantaged with the complex language used, like in Acts of Parliament

When making a Statutory Instrument a minister must:

1) Consult any people that the S.I. will affect e.g. businesses, unions etc.

2) Consider any suggestions from Committees

3) Use any resolutions that the Houses of Parliament have requested