Why do we need delegated legislation?
- Insufficient Parliamentary Time - Parliament only sits for 8 months per year. In an emergency a law may not be able to be passed quick enough in legislative procedure so Emergency Powers Act 1920 is very useful.
- Local Knowledge - Parliament does not have the local knowledge required. Local parking regulations require local people to have an understanding of the area. The Act Governing this is the Local Government Act 1972
- Technical Expertise - Parliament may not have the knowledge required. E.g. Health and Safety at at Work 1974 needs expertise in that field.
- Speed - In an emergency Parliament may not be able to pass a law quickly enough so ministers can ammend a law as necessary in an emergency. E.g. If a drug was found dangerous, it could be made illegal under the Misuse of Drugs Act 2008.
- Flexibility - can be ammended as necessary, if a dog was found dangerous it could be added to dangerous dogs list under Dangerous Dogs Act 1991.
- Future Needs - If a dog was found dangerous then a minister could add it to the dangerous dogs list under Dangerous Dogs Act 1991.
Types of Delegated Legislation
Orders in Council
- National Emergencies
- Made by Privy Council in name of the Queen.
- Quick process used in national emergencies such as floods, fires, food shortages.
- Example - Emergency Powers Act 1920 and Civil Contingencies Act 2004.
Statutory Instruments (Regulations)
- Made by head of government departments that have technical expertise in that area.
- Supplement main legislation and add detail to framework.
- Race Relations Act was ammended by a government minister that defined the term 'racial harassment'.
- Made by Local authorities/public bodies.
- Used to prevent local nuisciances on a small scale.
- Governed by parent Act Local Government Act 1972.
- Example - London Transport's ban on smoking at train stations in 2007.
- Good - dont go through Parliament and waste time on pety issues such as no parking signs.
Advantages/Disadvantages of Delegated Legislation?
- Saves time - quicker to ammend etc than primary legislation
- Policy not detail - takes care of the detail while Parliament's primary legislation provides basic framework.
- Fast - allows a quick response to emergencies such as terrorism/outbreaks of disease.
- Expertise - some areas involve technical expertise that parliament lacks.
- Controls - there are a number of controls over delegated legislation which avoids abuse of power.
- Its not debated in parliament so 'bad law through the back door' can happen.
- Can be left to junior ministers/civil servants who are not accountable to Parliament in the same way a minister is.
- The volume of complex secondary legislation encourages mistakes and undermines scrutiny, as well as being hard to keep up with.
- Not publicised as widely as primary legislation so denies public involvement and scruitny.
- Some delegated legislation is undemocratic as it is made by unelected persons/bodies which raises questions of accountability and control.
Negative, Affirmative and Super-Affirmative resolu
Negative Resolution -
- Insturment is laid before Parliament for 40 days, and if it is not objected it automatically becomes law. 'Bad law through the back door.'
- Most Statutory Instruments go through this. E.g. Gaming Act Order 1999.
Affirmative Resolution -
- Parliament is required to vote its approval of the delegated legislation on a given date during time its laid before Parliament.
- Codes of Practice go through this under PACE.
- However lengthy so defeats object of DL. Also can only be passed, annulled or withdrawn.
Super Affirmative Resolution -
- Made under Legislative and Regulatory Reform Act 2006.
- Allows ministers wide powers to repeal any law if it is considered a burden (e.g. financial cost).
- It may be laid before parliament and minister may have to consult people.
Controls of Delegated Legislation (Parliament)
- Parent/Enabling Act - Lays down boundaries and nature and scope. Delegated Legislation can always be revoked. Tight framework is effective. Loose frame work allows for abuse of power.
- Negtive Resolution - Can be objected to, however if it is emailed out at busy time it may be overloked. Can be revoked.
- Affirmative Resolution - Requires both houses to approve within 28-40 days, meaning it is scrutinised, however takes up valuable parliamentary time.
- Super Affirmative Resolution - Wide powers that could be open to abuse over what a 'burden' is. However minister may have to consult before hand.
- Questions by MP's - only a control as no ammendments can be made but it does publicise the issue which would lead to objections if controversial.
Scrutiny Committees: (A02: Can only report, not ammend.)
Joint Committee on Statutory Instruments - watches over making od Delegated Legislation and reports to house on any that requires special consideration. E.g. makes unusual use of powers such as imposing a tax.
House of Lords Delegated Powers Scruitny Committee - Looks at power being delegated by Parliament and report whether the power delegated is approproate. (Good as it keeps gov under pressure to give correct powers)
Controls of Delegated Legislation (Courts)
Doctrine of Judicial Review to decide the legality of the case. (e.g. did minister follow correct procedure)
Procedural Ultra Vires
Where procedures laid out in enabling Act were not followed properly - Aylesbury Mushrooms 1972 (Minster fo Labour didnt consult with proportion of mushroom growers representitive of growing community. Didn't consult Aylesbury (who made up 85% of mushroom growers)
Substantial Ultra Vires
Piece of delegated legislation goes beyond the powers laid down in Enabling Act. (using powers for unauthorised reason). Example, Fire Brigades Union 1995 - minister made changed to the Criminal Injuries Compensation Scheme which went beyond power laid out in Parent Act (Criminal Justice Act 1988)
Unreasonable Ultra Vires
If rules are unjust that no reasonable official could have made them. Example, Strikland v Hayes 1896 was a byelaw that banned singng obscene songs in general which was too broad as it covered peoples homes so was considered unreasonable.
Inconsistency with Human Rights Act 1998
A judicial review can challenge legality where a government minister has used their power in a way that is inconsistent with the Human Rights Act 1998.