Delegated Legislation

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Delegated Legislation

  • This is the largest source of legislation in the English Legal System
  • In 2001 there were 4147 pieces of Delegated Legislation and only 25 Acts of Parliament
  • It was the peak year for Delegated Legislation, in 2006 there were 3,500
  • Delegated Legislation is where parliament passes the power to someone else
  • There is usually an enabling act which gives the power to make Delegated Legislation E.G. The Equality Act 2006 is an Enabling Act: 50% states that the Secretary of State may make regulations about discrimination or harassment on the grounds of sexual orientation, and the Enabling Act states who has the power, what type of law they're going to make and what the power entails
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Types of Delegated Legislation

  • Order in Council
  • Statutory Instruments
  • Bylaws
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Orders in Council

  • Both the Queen and the Privy Council can make Orders in Council
  • The Privy Council is made up of the Prime Minister and other leading members of the Government
  • So Government can make law without having to pass it through Parliament, this is an important power because it allows the conservation and liberal democrats to bring in law without the rest of the House of Commons or House of Lords having any control.
  • It's mainly used for:-
  • Giving legal effect to European Directives
  • Transferring power between Government departments
  • Used to bring Acts or part of Acts into force in the form of a commencement order
  • The Privy Council can make law in emergancy situations
  • Occasionally it's used to make other types of law E.G. the Misuse of Drugs Act 1971
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Statutory Instruments (SI)

  • These are rules and regulations made by Government Ministers
  • Ministers can make regulations for the area under their particular responsibility
  • SI are a major method of law making, there is about 3,000 every year
  • SI can be quite short E.G. brought in every year to change annual minimum wage
  • Others are quite long with complex detailed regulations that are too complex to include in an Act of Parliament (E.G. PACE)
  • They are often used to bring in EU law
  • An example of an Enabling Act includes Serious Organised Crime and Police Act 2005: S67 gives secretary of state the power to make regulations with regard to the equipment used by the serious crime agency to make sure it satisfies requirements of design and performance.
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The Legislative and Regulatory Reform Act 2006

  • This is important as it gives Ministers powers to make any provision by order if it will remove or reduce a 'burden' resulting from legislation
  • A burden is defined as a financial cost, red tape, an obstacle to efficiency, productivity or profitability, and to get rid of a sanction which affects a lawful activity
  • So they have power to change Acts of Parliament even though the original Act did not give them the power to do this
  • The LRRA 2006 makes it clear that it cannot be used to introduce highly controversial reforms
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Bylaws

  • These are made by local authorities to cover matters in their own area
  • They are made for the 'good rule and Government' of the area and to prevent local nuisances
  • A County Council can pass laws affecting the county
  • A District or Town Council can only make bylaws for the district or town
  • They usually involve matters such as parking, cleaning up after your dog or having your feet on public seats
  • Public corporations can also make bylaws as well as certain companies for matters within their jurisdiction which involve the public E.G. Merseytravel
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Why do we need Delegated Legislation? (Advantages)

  • Lack of Parliamentary time as Parliament cannot debate every small detail of complex regulations
  • Lack of Parliamentary Expertise as MPs do not have the knowledge or expertise required to make all of the law E.G. Health and Safety law needs expert knowledge. Also they won't have local knowledge so Parliament deals with the main principles of the law but leave the detail to those with expert knowledge
  • The need for consultation as Ministers can consult with those with expert knowledge so the law is technically accurate and workable
  • Passing an Act is time consuming - if the law needs to be changed urgently, Parliament can't do this as it takes 5 stages. Also, an Act of Parliament needs to be amended or required because it's outdated, which can be done quickly by the Minister
  • An example is Police and Criminal Evidence Act 1984, any new or revised code of practice needs consultation
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How is Delegated Legislation controlled?

  • We need control because so much power is being given away
  • It gives power to people who aren't elected, and also there is a wide range
  • Control is exercised by Parliament and the Courts and also sometimes before a law is passed there must be a Public Inquiry if it is an especially sensitive matter such as planning laws that affect the environment
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Control by Parliament

  • This is fairly limited
  • They can control by setting boundaries in the Enabling Act
  • It's the main source of control as the Enabling Act will say who can make the law, what type of law it will be and what area of law
  • It may require consultation
  • Parliament also keeps power as if they're not happy with the law they can pass another act
  • In 1993 a Delegated Powers Scrutiny Committee was established in the House of Lords to consider whether the provisions of any Bill Delegated Legislative Power inappropriately
  • It reports its findings to the House of Lords before the Committee Stage of the Bill but has no power to amend Bills
  • The main problem is that there is no general provision that regulations made under an Enabling Act have to be laid before Parliament for MPs to consider them, but a few will require this
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Affirmative Resolutions

  • A small number of SI's will be subject to an Affirmative Resolution
  • This means it doesn't become law unless Parliament approves it
  • The Enabling Act will say if it needs an Affirmative Resolution E.G. PACE, to make amendments to codes of practice
  • Parliament cannot amend SI, they can only approve or annul it
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Negative Resolutions

  • Most SI's are subject to a Negative Resolution which means unless it is rejected by Parliament, it becomes law within 40 days
  • Individual Ministers can be questioned by MPs in Parliament about their work and proposed regulations
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Scrutiny Committee

  • This is a more effective check
  • The Joint Select Committee on Statutory Instruments was formed in 1973 and reviews all SI's and, where necessary, will draw attention of both Houses to points that need further consideration
  • However, the review is a technical one
  • The main grounds for referring a SI back to the Houses of Parliament are:-
  • If it imposes a tax or charge (not elected)
  • Has retrospective effect
  • It's gone beyond powers of the Enabling Act or the power has been used in an unexpected way
  • It's unclear or defective
  • The Scrutiny Committee can only report back it's findings and has no power to alter any SI. The Hansard Society in their 1992 report: some critical findings by Committee are ignored by Ministers
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The Legislative and Regulatory Reform Act 2006 (2)

  • This Act sets out the procedure for making a SI which is to repeal existing law to remove a burden (you don't need an Enabling Act)
  • S13 requires the Minister making the SI to consult various people and organisations including organisations that represent the interest of those substantially affected by the SI, the Welsh Assembly and the Law Commission
  • Orders made under this power of the Act must be laid before Parliament
  • There are 3 possible procedures
  • Negative Resolution Procedure
  • Affirmative Resolution Procedure
  • Super-Affirmative Resolution
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Negative Resolution Procedure

  • The Minister may recommend this procedure should be used, and if he does it will be used unless within 30 days one of the houses object
  • If they don't, 40 days later it becomes law
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Affirmative Resolution Procedure

  • Both houses have to approve the order and even if the Minister recommends this procedure; Parliament can require a Super-Affirmative Resolution
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Super-Affirmative Resolution

  • Under this the Minister must have regard to:
  • Any representations
  • Any resolution of either House
  • Any recommendation by a Committee of either House
  • This Super-Affirmative Resolution procedure gives Parliament more control over Delegated Legislation made under the Legislative and Regulatory Reform Act 2006 which is important
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Control by the Courts

  • Delegated Legislation can be challenged in the courts on the ground that it is ultra vires (beyond the power given by Parliament)
  • By using the Judicial Review Procedure, it may arise in a civil case or on appeal
  • Any Delegated Legislation which is ruled to be ultra vires is void and not effective
  • R v Home Secretary, ex parte Fire Brigades Union (1995):
  • The home secretary made changes to the Criminal Injuries Compensation Scheme
  • The Court held that he had gone beyond his power given to him in the CJA 1988
  • The Courts will presume that unless an Enabling Act expressively allows it, there is no power to make unreasonable regulations
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No power to make unreasonable regulations

  • 1) No power to make unreasonable regulations:
  • Stricland v Hayes Borough Council 1896:
  • A bylaw prohibited singing or reciting obscene songs or ballads or use obscene language generally
  • This was widely drawn as it covered private and public places
  • Wednesbury: no reasonable county would consider it reasonable
  • 2) Levy taxes
  • 3) Allow sub-delegation
  • Delegated Legislation may also be ultra vires because the correct procedure was not followed (Procedural Ultra Vires)
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Procedural Ultra Vires

Aylesbury Mushroom Case 1972:-

  • The Minister of Labour had to consult any organisation that represented employers engaged in certain activities, in this case, farming
  • He should have consulted the Mushroom Growers Association
  • The Minister established a training board, we can question whether or not that was valid because he didn't consult everyone
  • But farmers were not affective, the board still remained valid against them
  • National Farmers Union had been consulted
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Substantive Ultra Vires

R v Secretary of State for Education and Employment, ex parte National Union of Teachers 2000:-

  • A SI set the conditions for appraisal and higher rates of pay for teachers
  • Enabling Act: Education Act 1996 gave power
  • Court held that he'd gone beyond his powers
  • Substantive ultra vires
  • It was also procedural ultra vires, only allowed 4 days of consultation
  • If SI's conflict with EU law, they can also be declared void - intra vires
  • The person who brings the action must have locus standi
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Criticisms of the use of Delegated Legislation

  • It takes law making away from democratically elected House of Commons and allows non-elected people to make law, this wouldn't be a problem if there was enough control by Parliament, and control is limited. This criticism does not apply to bylaws because councillors are elected
  • Sub-delegation is a problem, most of our law is made by civil servants with the Minister merely rubber stamping it
  • Large amounts of Delegated Legislation make it difficult to access the law because it's difficult to find what the present law is, what makes it worse is that most Delegated Legislation is made in private. With bills there are lots of public debates on law
  • As with Acts of Parliaments, Delegated Legislation suffers from the problem of obscure wording, this makes the law difficult to understand and leads to problems of interpretation
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