Law- Delegated Legislation

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  • Created on: 29-04-13 11:20

Delegated Legislation -Definition

Definition: Parliament delegates some of its legislative powers to others. It does this by creating an enabling act. The enabling act confers authority on some other body to make laws on its behalf.

  • This will be a Government Minister or local councils.
  • Law made under DLhas full binding authority of the law and full legal effect. 
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Delegated Legislation -Statutory Instruments

Statutory Instruments 

are the most common type (3000 approx per year)- An enabling act gives power to a Government Minister to make laws for their policy areas eg. Housing Act 1957- allows Sec State for the environment to order compulsory purchase of land. 

  • They have to be Published by HMSO
  • They have to be 'Laid before Parliament' before becoming law. 

Recent examples: The Health Act 2006 - [the enabling act] gave power to the Sec State for health to make regulations. As a result - Smoke free [ Premises & enforcement regulations 2006] was passed prohibiting smoking in premises. 

Medical Act 1983[qualifying examinations] Order 2008 - provides for the setting of medicine examinations.

The Scotland Act 1998 [Afency arrangement] Order 2008 - allows Scottish Ministers certain function e.g. regulation of farming and welfare of animals. 

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Delegated Legislation -Order in Council

An enabling act gives power to the Queen or Privy Council [which is made up of the prime minister and other senior members of Government] to make laws which don't have to be confirmed by Parliament.


  • In emergencies- under the Emergency Powers Act 1920  [enabling act]- Terrorism [UN Measures] Order 2001
  • To give legal effect to European Directives
  • Transfer of Power between ministers- National Assembly of Wales [Transfer of functions] order 1999
  • Used for other types of law e.g. - to alter the Misuse of Drugs Act 2004 to make cannabis class C.  - to deal with foreign affairs Afghanistan [UN sanctions Order 2001]
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Delegated Legislation -Bylaws

An enabling Act gives power to local authorities & public corporations to make law for their areas, making rules for their region- e.g. What council tax will be spent on/ making rules e.g. recycling refuse.

Dogs [fouling of land] Act 1996  [enabling act] gave local authorities power to make bylaws to create poop- scoop areas.

Specific Example

Criminal Justice and Police Act 2001 [EA] resulted in Worcester City Council passing bylaw- Alcohol consumption in Public Places no1 2004 banning alcoholin certain publis places in Worcester.

Public coporations-  By laws can also be made by public coporations e.g.

  • British Airports authority
  • Railway companies
  • BBC -can make rules about security and public behaviour

They are normally published in a the local press before becoming law. 

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Control of Delegated Legislation

  • Delegated legislation is not subject to the legislative process in Westminister. It can be argued therefore that it is effectively undemocratic in its nature. This is because power to make law is given to others rather than mambers of Parliament.
  • It is also has the potential for abuses of power by the delegated body.
  • Because of these negative features, delegated legislation is limited and subject to a number of controls: 

Parliamentary Controls - preventative measure to avoid abuse of power.

  • Power is limited by the enabling act -the enabling act should only grant adequate power [and no more] for the body to which power is delegated, to carry out its task. 
  • The Delegated Powers Scrutiny Committee- established in 1993 by the House of Lords scruntinises enabling sections dafted into bills to ensure they are not too wide.
  • Laying before Parliament -this requires statutory instruments to be presented into Parliament before it can take one of two forms and the enabling act will state which type of laying before Parliament is required.
  • negative resolution This applies to most statutory Instruments. The SI is placed in parliament and automatically becomes law after 40 days if no-one chooses to question it.
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Control of Delegated Legislation

  • affirmative resolution- Parliament [either one of both Houses as determined by the enabling act] must debate and vote on the proposal it before the SI can become law. LESS COMMON METHOD. Examples- codes of practice made under PACE1984

     - regulations made under the Human Rights Act 1998

  • Scrutiny Committee- formed in 1973, it looks at statutory intruments to ensure they have not been made using the wrong procedure or beyond the power given in the enabling act. The check is purely technical and doesn't consider if the SI is justified. The Committee has no power to make alterations but most draw attention to issues raised to Parliament. 
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Control of Delegated Legislation

Judicial Controls

A remedial measure where a person, claiming s/he has been affected by a law made by delegated legislation, asks the court to intervene.The validity of delegated legislation can be challenged in the courts- 2 ways:

  • Judicial review- the High Court reviews the law/ decision of a delegatedbody. A recent example is the judicial review of House Buying Packs in 2007 
  • In a civil claim between two parties- when the law involved haas been made by delegated power. 

Declaration that a law is -Ultra Vires- the courts may be asked to examine whether or not the delegated legislation is ultra vires, meaning beyond ones powers. An ultra vires decision can take 2 forms:

  • Procedural Ultra Vires- the court will respond to a claim that the correct procedures were not followed in making the delegated legislation. Aylesbury Mushroom Case- held that the Minister of Labour had failed to consult the Mushroom growere association when establishing a training board as required by the enabling act.
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Control of Delegated Legislation

  • Substantive Ultra Vires-  The court will respond to a claim that the delegated body didnt have the authority to make the law i.e. it went beyond the powers granted in the enabling act. Strictland v Hayes BC- held that a bylaw resticting the performance of songs with obscene words in Private, went beyond the powers given in the enabling act which only allowed preventing such things in public.

Declaration of Unreasonableness- the courts may be asked to examine a decision made by a delegated body where a claimant considers the decision to be unreasonable and unfair. The court will consider the Wednesbury Principle. The Wednesbury Principle  -the courts will quash a decision if the court considers the decision 'so unjust that no reasonable body would have made it.' 

There are Various remedies e.g. Mandamus  an order for the delegated body to the correct law. 

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Control of Delegated Legislation Evaluation

Because delegated law making can be undemocratic and is not subject to wide and lengthy debate of Parliament it is good in theory that such law is subject to control. However the controls are arguably inadequate to offer stringent protection from abuses of power. The perceived problems are;

  • Parliament aren't always careful-  enough when drafting Enabling Acts to limit power to the least possible required. 
  • Laying before Parliament by negative resolution offers very little control as no-one is obliged to challange the policy aspects of the SI. It automatically becomes law in 40 days and it would be possible for an unpopular law to be passed without debate and vote
  • Affirmative resolution is better but it is argued that insfficient amount of Parliamentary time is given over for adequate scruntiny.
  • The Scruntiny Committee only has power to check technicalities.
  • Judicial review of delegated law helps to provide a remedy for a person who has been adversely affected by inappropriate DL. However not every claim is given permission to have their case reviewed.
  • Not everyone who may wish to bring a judicial review will be able to afford to claim. 
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Evaluation of Delegated Legislation

Advantages of Delegated Legislation 

  • Speed- compared to the Parliamentary Legislative Process making DL is much quicker. The legislative proces has 11 stages in total and is slow DL can be made, changed and repealed speedily as circumstances require it.
  • Used in emergencies- in an emergency laws have to be made quickly. They also have to be made by people whose fingers are on the button who have access to allrelevant info e.g. The PM. DL allows for decisions to be made quickly and by the appropriate person.
  • Matter of technical nature- some decisions which involve technicalities are better made by people directly involved with theissue rather than by Parliament whose members maylack the expertise required for sound law making.
  • Matters requiring local knowledge- Parliament in London doesn't have the local knowledge to make laws relating to specific localities. It is better therefore that laws which relate specifically to a particular area should be made by people with full knowledge of local issues.
  • Parliament lacks time to make all law required for the UK- a practical reason why DL is used is taht Parliament simply doesnt have time to make every law required for the running of the country.
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Evaluation of Delegated Legislation

Disadvantages of Delegated Legislation

  • Undemocratic law making and sub-delegation- some bodies with delegatedpower aren't elected by the country directly to make law and it is therefore arguably undemocratic law making. Parliament debates widely but delegated legislation can be made by one person who may not be democratically elected. The situatuion is worsened when Government Ministers sub-delegate their law making power to a civil servant who has no authority atall to make law.
  • Inadequacy of Controls- because DL is open to abuse of power it is important to have control over it. However the controls are arguably inadequate to prevent abuse of power. The scruntiny committee only check techniqualities and not policy issues. Enabling acts aren't always drafted carefully. Not all cases have permission for a judicial review.
  • Inadequacy of Drafting- much DL involves technical matters it is criticised that drafting is unsatisfactory. People involved may have technical skills but lack experience and skills in drafting law. Such law can be difficult to interpret and understand. This applies to both SI's, where the task is often left to civil servants, and Bylaws where provisions are initially drafted by local people voted in as councillors. 
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Evaluation of Delegated Legislation

  • Large Volume- the large volume every year of DL can make it diificult knowing what the current law is. There are approx 3000 statutory instruments passed each year. 
  • Lack of Publicity- lack of publicity and public debate in the process of making DL exacerabates the problem of knowing wht the current law on a given topic is. Laws can be made without widespread knowledge that it exists. 
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