What is delegated legislation?
The power to make law is given through the parent/enabling act. This authorises someone else other than parliament to make laws on certain matters. The powers are often delegated to Government Ministers, however may also be delegated to local authorities, proffesional and other public bodies.
The parent act sets out the framework for new law, it will give authority to a specific person/body to make further law. It also may specify the area within which the law can be made.
Examples of Parent acts:
The Railways Act 2005- Order 2007
The power to make statutory instruments is given by an enabling act to Government Ministers to make law in relation to the work of their department, so they will have the required local knowledge. An example of when statutory instruments are used is where time limits, fines/fees are set. For example to change the amount of a fine for a criminal offence.
Statutory instruments are a useful way of updating existing legislation without the need to go back to Parliament. For example the National Minimum Wage Act 1998 requires regular increases.
Statutory Instruments are also used to make laws to comply with the EU. Statutory instruments are also enforceable in court.
Delegated legislation made by local authorities are called By-Laws. They are made to deal with matters within their own area. For example The Dogs Act 1996, which allows the local authority to designate places as 'poop scoop' areas. And will impose a penalty on those who fail to clean up after their dogs.
Authority to make By-Laws is given by a parent act. By-Laws are made under Section235 Local Government Act 1972.
Orders in Council.
These are a form of delegated legislation made by the 'Privvy council' and the Queen. The Privvy council is made up of all current and former Government minsters, members of the Royal Family, 2 Archbishops and senior judges.
Situations when Orders in Council are used:
- In times of emergency- The emergency powers Act 1920, this act gave the Queen and Privvy council power during the foot and mouth crisis, Orders in council were used to try and stop the disease from spreading. They were also used during the fuel crisis in 2000.
- To transfer responsibilties between government departments. The Scotland Act 1998-Order 1999 to transfer power from ministers in the UK government to the national assembly of Scotland.
- Matters of foreign affairs- Afghanistan order 2001, which makes it an offence to make funds available to Osama Bin Laden/Taliban.
Control by Parliament.
- Limits set out in the Parent/Enabling Act
- The Delegated Powers Scrutiny Committee- In the House Of Lords they decide if the provisions in a bill to delegate law making powers when appropriate.
- Positive resolution procedure- The statutory instrument must be approved by a vote in one/both Houses of Parliament within a specified time limit. However this method of control can be time consuming.
- Negative resolution procedure- The statutory instrument is laid before Parliament usually for 40 days, it then becomes law unless either house votes to annul it. However this method is limited.
- The responsible Government Minister can be questioned on the new law.
Advantages- Affirmative resolution procedure is effective when used. Disadvantages- Cannot be ammended by Parliament, only apporved, annulled or withdrawn. It is also time consuming and limmited as the Government will usually win any votes due to their majority.
Judicial forms of control.
Procedural Ultra Vires- Delegated legislation may be declared invalid if the person/body making the delegated legislation has not followed the procedure set out in the parent act. Case Examples- Aylesbury Mushroom- An order was declared void agaisnt mushroom growers because a letter informing the Mushroom growers association of the new law did not comply with the requirement in the parent act to consult interested parties.
Substantive ultra vires- The content of the delegated legislation is beyond the limits set out in the parent act. Case Example- A-G Fulham Corporation- The corporation was given the power under a parent Act to provide clothes washing facilities for residents. In 1920 the corporation provided laundry where council employees washed the residents clothes. This was ultra vires because the enabling act did not give authority to provide a laundry to wash clothes for others. It was made to provide facilities for people to wash their own clothes.
Ultra Vires- 'Beyond the powers' granted in the enabling act.
The courts may declare the delegated legislation ultra vires and therefore void on the basis that it is unreasonable. Case Example- 'Wednesbury unreasonableness' They wanted to restrict cinema access to children to improve school attendance. The court stated the local authority had not acted unreasonably or ultra vires in imposing the condition. This unreasonable test was explained by Lord Greene.
Advantages of Delegated Legislation
- Time saving- Parliament does not have enough time to pass all the new detailed laws. Delegated legislation can be passed quickly.
- Produced with specialist knowledge- Parliament does not necessarily possess specialist knowledge. Local councils (ByLaws) have greater knowledge of the area.
- Control- In Parliament statutory instruments are subject to the affirmative/negative resolution procedure and are scrutinised by the Scrutiny Committee. Also ByLaws must be approved by the relevent Government ministers. Also Judges can declare delegated legislation void.
Disadvantages of delegated legislation.
- Lack of publicity- Because delegated legislation is not debated by Parliament there isnt any press present, to raise public awareness.
- No effective control- Not all statutory instruments are subject to an affirmatie/negative resolution procedure. Also some ultra vires is never challenged.
- Risk of sub-delegation- The body/person who has been given the power to make law may pass this power down to another. For example statutory instruments are supposed to be made by Government Ministers, they are actually made by their civil servants in some situations.