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Types of Delegated Legislation

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37 views3 pages

Types of Delegated Legislation

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x224tj9znd
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Delegated Legislation

This is when law is made by some person or body other than the Parliament but with the
authority of the Parliament. The authority is usually laid down in a ‘Parent Act’ known as the
‘Enabling Act’ which creates the framework of law and gives power to others for making
detailed law in that area. An example of the Enabling Act is the Access to Justice Act 1999
which gave the Lord Chancellor wide powers to alter various aspects of the legal funding
scheme. Another example is the Criminal Justice Act 2000 which gave the Secretary of
State the power to make delegated legislation.

Types of Delegated Legislation


1. Orders in Council: The Queen and The Privy Council have the authority to make
Orders in Council. The Privy Council is made up of the Prime Minister and other
leading members of the government. This type of Delegated Legislation effectively
allows the Queen and the Privy Council to make legislation without going to the
Parliament. It’s main use today is to give legal effect to European Directives. The
Privy Council also has the power to make laws in emergency situations under The
Emergency Powers Act 1920 and The Civil Contingencies Act 2004.
2. Statutory Instruments: This refers to the laws made by government Ministers.
Government departments are given the authority to make legislation for areas under
their particular responsibility, for example the Lord Chancellor has powers regarding
The Legal Aid Scheme while the transport minister is able to deal with Road Traffic
Legislation. The use of statutory instruments is a major method of law making as
there are about 30,000 statutory instruments brought into force every year.
3. By-laws: These can be made by local authorities to cover matters in their own area
for example the district or town. By-laws can also be made by public corporations or
certain companies for matters within their own jurisdiction or matters which involve
the public. This means that bodies like the British Airport Authority or The British
Railways can endorse rules on public behaviour on their premises. An example of
such a by-law is the smoking ban on the London Underground System.

The Need for Delegated Legislation


● The Parliament does not have time to consider details of complex regulations.
● In addition the Parliament may not have the necessary technical expertise or
knowledge required to make certain technical laws for example health and safety
regulations in different industries need expert knowledge while local parking
regulations need local knowledge.
● Ministers can have the benefit of further consultation before regulations are drawn
out. Consultation is particularly important for rules and matters where it is necessary
to make sure that the regulations are technically workable.
● The process of passing an Act in Parliament can take considerable time and in an
emergency, Parliament may not be able to pass law quickly enough. This is another
reason why delegated legislation is sometimes preferred. It can also be amended or
revoked easily when necessary, so that the law can be kept up to date, and ministers
can respond to new or unforseen situations by amending or amplifying statutory
instruments.
Control on Delegated Legislation
As DL in many instances is made by non elected bodies and since there are so many people
in power to make DL, it is important that there should be some control over it. Control is
exercised by the Parliament and by the Courts. In addition, there may be sometimes a public
inquiry before law is passed on a specially sensitive matter such as planning laws which may
affect the environment.

Control by the Parliament


This is fairly limited though Parliament has the initial control with the Enabling Act which sets
the parameters within which the DL is to be made. In addition The Delegate Powers Scrutiny
Committee was established in 1993 in the House of Lords to consider whether the provision
of any Bills delegated legislative powers inappropriately. It reports its findings to the House
of Lords before the Committee Stage of the Bill but has no power to amend the Bill.

Affirmative Resolution
A small number of statutory instruments will be subject to an affirmative resolution. This
means that statutory instruments will not become law unless specifically approved by the
Parliament. The need for an affirmative resolution will be included in the Enabling Act.

Negative Resolution
Most statutory instruments will be subject to a negative resolution which means that the
relevant statutory instrument will be law unless rejected by the Parliament within 40 days.
Individual Ministers may also be questioned in Parliament on the work of their departments.
This can include questions about the proposal regulations.

Scrutiny Committee
A more effective check is the existence of a joint selective committee found in 1973, called
The Scrutiny Committee. This Committee reviews all statutory instruments and where
necessary will draw the attention of both Houses of Parliament to points that need further
consideration. However, the review is a technical one and not based on policy. The Scrutiny
Committee can only report back its findings but has no power to alter any statutory
instruments.

Control by Courts
DL can be challenged in courts on the grounds that it is ‘ultra vires’ that is it exceeds the
powers that The Parliament granted in the Enabling Act. This questioning of the validity of
the DL may be made through the judicial review procedure or it may arise in a civil claim
between two parties, or an appeal. Any DL which is ruled to be ultra vires is void and not
effective, this was illustrated in the case of R v Home Secretary ex parte Fire Brigade Union
(1995), where the changes made by the Home Secretary to The Criminal Injuries
Compensation Scheme were held to have gone beyond the power given to him in The
Criminal Justice Act (1988). The Courts will presume that unless an Enabling Act expressly
allows it, there is no power to do any of the following:
● to make unreasonable regulations – in Strickland v Hayes Borough Council 1896, a
bylaw prohibiting the singing or reciting of any obscene language generally, was held
to be unreasonable and so ultra vires, because it was too widely drawn in that it
covered acts done in private as well as those in public
● Levy taxes
● allow sub-delegation

It is also possible for the courts to hold that DL is ultra vires because the correct procedure
has not been followed. For example, in the Aylesbury Mushroom Case 1972, the Minister of
Labour had to consult ‘any organisation... appearing to him to be representative of
substantial numbers of employers engaging in the activity concerned.’ His failure to consult
the Mushroom Growers’ Association, which represented about 85 percent of all mushroom
growers, meant that his order establishing a training board was invalid as against mushroom
growers, though it was valid in relation to others affected by the order, such as farmers, as
the minister had consulted with the National Farmers’ Union.

In R v Secretary of State for Education and Employment ex parte National Union of


Teachers (2000). A High Court judge ruled that a statutory instrument setting conditions for
appraisals and access to higher rates of pay for teachers, was beyond the powers given in
The Education Act 1996. In addition the procedure used was unfair as only 4 days were
given for consultation.

Statutory instruments can also be declared void if they conflict with European Union
Legislation.

Criticisms
1. The main criticism is that it takes lawmaking away from the democratically elected
people. This is acceptable provided there is control but it has already been seen that
the Parliament’s control is limited. This criticism cannot be made about By-laws made
by local authorities since they are accountable to local citizens and are elected
bodies.
2. Another problem is that of sub delegation which means that law making authority is
handed down another level. This causes comments such as that “much of our law is
made by civil servants and merely rubber stamped by the Minister of that
department”.
3. The large volume of DL also gives rise to criticism since it makes it difficult to
discover what the present law is, this problem is aggravated by a lack of publicity as
much of the DL is made in private in contrast to the public nature of Parliament’s law
making.
4. Finally DL shares with the Acts of Parliament the same problem of obscure wording
that can lead to difficulty in interpreting and understanding the law.

Common questions

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Statutory instruments have the advantage of being enacted quickly and without consuming the significant time resources required for full parliamentary legislation, allowing government ministers to promptly address specific issues within their domains . They can also be more easily amended or revoked, enhancing responsiveness to unforeseen circumstances . However, disadvantages include reduced democratic oversight and potential for less scrutiny, as many statutory instruments are subject only to negative resolution, which can bypass full parliamentary debate . This ease of implementation and change can lead to concerns over transparency and accountability .

To control potential overreach in delegated legislation, Parliament and the courts play key roles. Parliamentary control is exercised through the Enabling Act, the Delegate Powers Scrutiny Committee, and the requirements for affirmative and negative resolutions . However, these controls are considered limited, as the Scrutiny Committee can only report findings and cannot amend statutory instruments . Judicial control involves challenging legislation as 'ultra vires' or exceeding granted powers, which can void the legislation if upheld, as seen in the R v Home Secretary ex parte Fire Brigade Union case . While judicial review is a powerful tool, the volume of delegated legislation makes comprehensive scrutiny challenging .

The concept of 'ultra vires' serves as a judicial check by ensuring that delegated legislation does not exceed the powers granted by the Enabling Act. When a piece of legislation is deemed ultra vires, it is rendered void and ineffective. Historical examples include the Strickland v Hayes Borough Council case, where a bylaw was invalidated for being unreasonable and excessively broad, and R v Home Secretary ex parte Fire Brigade Union, where legislation exceeded granted powers and was struck down . These cases illustrate the judiciary's role in maintaining the limitations set by the Enabling Act.

By-laws made by local authorities generally face fewer criticisms regarding democratic legitimacy compared to other forms of delegated legislation because these authorities are elected by local populations, maintaining a direct line of accountability . However, criticisms might arise regarding their specificity and potential for inconsistency between different localities, or in terms of how effectively local needs are addressed . Additionally, local expertise is essential, raising concerns about variations in enforcement and regulation quality across regions depending on resource availability and political priorities.

Delegated legislation can lead to criticisms regarding transparency and accountability due to several factors. The large volume of legislation can make it difficult for the public and professionals to keep track of current laws . Additionally, much of the delegated legislation is created in private, unlike the public processes of Parliament, which limits publicity and openness . Furthermore, the involvement of non-elected bodies in lawmaking raises concerns about democratic accountability, although local authority by-laws are exceptions, as these authorities are accountable to local voters .

Delegated legislation is necessary because Parliament does not have the time to consider the intricate details of complex regulations, nor does it necessarily possess the technical expertise required for certain specialized laws . Additionally, legislation can be made more efficiently and responsively through delegated powers, as delegated legislation can be adapted or amended swiftly in response to new or unforeseen situations . This flexibility implies that delegated legislation can keep laws up to date and workable in technical areas , but it also results in certain democratic deficits, since non-elected bodies make many of these laws .

Different entities have distinct roles in producing types of delegated legislation. The Queen and the Privy Council are responsible for Orders in Council, which allow legislation to be made without Parliament primarily for EU Directives or emergencies . Government ministers utilize statutory instruments within their departments to address specific areas like roads or legal aid . Local authorities create by-laws for local governance on issues like public behavior within their jurisdiction, and public corporations might regulate public conduct on premises under their control . These arrangements reflect a practical division of legislative roles across different institutional levels and purposes.

Emergency powers significantly influence the application of delegated legislation by allowing rapid response in situations where traditional legislative processes would be too slow or cumbersome. For instance, The Emergency Powers Act 1920 and The Civil Contingencies Act 2004 enable the Privy Council to legislate in emergencies without the need for full parliamentary involvement . This expedience, while practical during crises, raises concerns over the bypassing of normal democratic processes and in-depth scrutiny, highlighting a tension between effective governance and maintaining democratic accountability .

Delegated legislation can clash with European Union law if it contradicts established European directives or regulations. If a statutory instrument is found inconsistent with EU law, it can be declared void, and the EU law will prevail in its place . Such conflicts underscore the need for careful drafting and consideration of existing international obligations when creating delegated legislation, maintaining coherence within the broader legal framework . The consequence of these clashes is the potential annulment of national legislation and a mandate to align with EU provisions, ensuring that domestic law adheres to international agreements.

The large volume of delegated legislation can lead to significant difficulty in keeping track of current laws, posing challenges for legal professionals and the general public in understanding and applying the law accurately . Additionally, the sometimes obscure wording shared with primary legislation can exacerbate these challenges, requiring interpretation and potentially leading to inconsistencies or disputes over meaning . This lack of clarity and the sheer volume can erode public trust in the legal system and render compliance more burdensome for individuals and businesses.

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