Delegated legislation

• A law made by individuals or institution under authority from parliament
• Orders in council:

  • some are primary legislation made under royal prerogative
  • most are secondary legislation drafted by government departments and approved by the king and privy council.
  • made under powers given in an enabling act
  • e.g transferring power between gov departments
• Statutory instruments:

  • Statutory instrument act 1946 allows SIs as a form of legislation which allows the provision of an act to be brought into force without having to pass a new act.
  • 3000 are passed every year
• • SIs are drafted by government ministers under powers given in the enabling act
  • Necessary expertise is used when drafting it
  • Subject to a negative or affirmative resolution
  • Provide detail too complex to include in an enabling act
  • Can amend, update and enforce provisions in primary legislations
  • E.g SI no2695 under the road traffic act 1998
• By laws:

  • Local gov act 1982 grants powers to local authorities to regulate public entertainment and street trading
  • E.g chorley borough council temporary structures bylaws 1996
  • public corporation psnand companies can pass bylaws that relate to them
  • E.g london underground banning smoking
  • They are subject to judicial review and can be quashed if they go beyond the limits set out in the enabling act
• Parliamentary controls - enabling act:

  • The enabling act sets the boundaries within which the delaegated legislation is to be made
  • States which gov minister can make regulations and who needs to be consulted
  • If they apply to the country or to just an area
  • Tells the law maker about the revocation amendment and publication process
  • Which resolution process it must go through
  • parliament can repeal the power from an enabling act at any time
• Parliamentary controls - consultation

  • Delegated body is required to consult parties that might be affected by the law
  • Direct control by making the law maker consult with people directly affected
  • Indirectly as it may lead to judicial review if an individual brings action to annul regulation
• Parliamentary control - laying before parliament

  • SIs must be affirmed after being presented to parliament
  • affirmative resolution: SI will not become a law unless speicifically approved by parliament (police and criminal evidence act 1984)
  • negative resolution: SI comes into force unless rejected by parliament within 40 days
  • parliament is able to check on an SI before it becomes a law
• Parliamentary controls - questioning of gov ministers

  • They can be questioned about their proposed or current dl
  • Ministers can be held accountable for their law making
• Parliamentary controls - scrutiny committee

  • Small group of mps act as a filter so parliament consider a small number of SIs
  • The review and refer any SI they believe meeds more consideration
  • A check only has no power to amend
  • provide a secondary check on SIs
  • can refer to parliament if there are concerns
• Judicial review - ultra vires

  • A citizen can apply to the courts to challenge a piece of legislation that goes beyond its powers
  • Individual makes application to a queens bench division
  • No power to make unreasonable regulation
  • indirect control, it provides an independant check by judiciary
• Procedural ultra vires:

  • Challenge to delegated legislation because of incorrect procedure
  • Aylesbury v mushroom
• Substantive ultra vires:

  • Challenge to dl where a decision has been reached outside the powers conferred
  • R v home secretary exmparte fire brigades
• Substantive ultra vires for unreasonableness

  • Courts may find a body being so unreasonable no authority could have decided that way.
  • Strickland v hayes