Orders in Council
- The Queen and the Privy Council have the authority to make Orders in Council
- in theory these are made by the Queen but in practice they are made by members of the Cabinet (as Privy Counsellors) in the name of the Queen.
- The enabling Act will authorise a certain Privy Counsellor, such as the Home Secretary or Lord Chancellor, to draft Orders in Council but they will not come into force until the Queen approves it.
- These are often used in emergency situations under the Emergency Powers Act 2004
- Occassionaly, Orders in Council will be used to make other types of law e.g. in 2003 an Order in Council was used to alter the Misuse of Drugs Act 1971 so as to make cannabis a Class C drug
- Rules and regulations made by Government Ministers- given authority to make regulations for areas under their particular responsibility
- about 3000 statutory instrument brought into force each year
- Undemocratic because civil servants are not elected
- made by local authorities, public and nationalised bodies
- have to be approved by central Government
- local laws made by people who know the local area
- representatives on local councils are elected so they are democratic
- Those in public and nationalised bodies are not elected but only make laws that affect narrow areas
- e.g. London Underground banned smoking on their premises
Why is delegated legislation necessary?
- Insufficient parliamentary time- parliament does not have enough time to debate every detailed rule necessary for efficient government
- Speed- allows rules to be made more quickly
- Technicality of the subject matter- Parliament may not have the necessary technical expertise or knowledge required e.g. MP's do not usually have it, whereas delegated legislation can use experts who are familiar with the relevant areas
- Need for local knowledge- local by-laws in particular can only be made effectively with awareness of the locality
- Flexibility- statutes require cumbersome procedures for enactments and can only be revoked or amended by another statute. Delegated legislation, however can be put into action quickly, and easily revoked if it proves problematic
- Future needs- Parliament cannot hope to foresee every problem that might might arise as a result of a statute, especially concerning areas such as health provision or welfare benefits. Delegated legislation can be put in place as and when such problems arise.
Control of delegated legislation
- Consultation- those who make make delegated legislation often consult experts within the relevant field, and those bodies which are likely to be affected by it
- some Enabling Acts may make it compulsory that some form of consultation takes place before the delegated legislation can come into force.
Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushroom Ltd (1972)
An order to impose a charge for training being provided by the Training Board was challenged and declared invalid as the interested parties only received a letter informing them of the charge for training rather than full consultation concerning changes to training as was required.
Supervision by Parliament
Revocation- Parliamentary sovereignty means that Parliament can at any time revoke a piece delegated legislation itself, or pass legislation on the same subject as the delegated legislation
Affirmative resolution procedure- Some Enabling Acts require approval from the House of Commons and /or the House of Lords before it becomes law
Becomes law only if a motion approving it is passed within a specified time (usually 28 or 40 days).