Delegated Legislation

• What is delegated legislation?

  Delegated legislation is law made by some person or body other than parliament, but with the authority of parliament.
• It is often referred to as secondary legislation - meaning it can be challenged.
• What is the point of having delegated legislation?

  Delegated legislation helps save parliamentary time.
• Other than saving parliamentary time, why else do we need delegated legislation?

  Bodies seperate to parliament will have specialism, knowledge and expertise in their particular area.
• What act allows delegated legislation?

  Parent Act of parliament, the Enabling Act which created the framework of the law and then delegates power to others to make more detailed law in that area.
• What are the 3 types of delegated legislation?

  1. Orders in council - Made by King and Privvy council
  2. Statuatory instrument - Made by Government ministers
  3. By Law - Made by local authority 3b. Devolution - a type of by law made by welsh and scottish parliament.
• Orders in council are made by the King and the Privvy council.

  • The privvy council is made up of the Prime minister and other leading members of government - effectively it allows government to make legislation without going through parliament.
  • Aims to make laws faster in emergencies - Coronavirus Act 2020
  • The current power to make emergency orders in council is granted under the Civil contengincies Act 2004.
• Statuatory instruments refers to rules and regulations made by Government ministers who are given authority to make regulations for areas under their particular responsibility.

  • They are a major law making method - 3000 SI brought in yearly
  • Each minister deals with a different area of policy and can make rules and regulations in respect of matter in which it deals
  • E.g. Mininster for work and pensions will be able to m ake regulations on work related matters such as health and safety at work.
  • Under PACE 1984 the Home secretary was given the power to create laws about how the police should exercise their power.
  • Government ministers are able to develop complex areas of law in a more detailed way than an Act of Parliament as they have expertise in that area.
• • Government ministers are able to develop complex areas of law in a more detailed way than an Act of Parliament as they have expertise in that area.
• By Laws are made by Local authorities, County councils , district/town councils, public cooperations or bodies.

  • E.g. Railways can make laws about public behaviour on their premises: London smoking ban.
  • These bodies can make these laws because of their local knowledge of the area.
  • By laws only affect the area they are made for.
• Devolution is a type of By law that affects a whole region.

  • This means the welsh government can make laws without reference to UK government same as scotland and ireland.
  • This was granted by Part 4 Government of wales act 1998, but the full law making power came into effect in the Government of Wales Act 2006.
• What law gave the power for devolution?

  Part 4 Government of wales act 1998 - Full effect in Government of wales act 2006.
• As delegated legislation is made by non-elected bodies, and there are many bodies which have the power to make DL, it is importantant that there should be some control over this.

  Control is exercised in 3 ways:

  1. Parliament
  2. Committees
  3. Courts
• 1. Control by Parliament

  • The Enabling act - sets boundaries within which delegated legislation is to be made.
  • It states which government minister can make the regulation, the types of laws that can be made, and whether they can bemade for the whole country or certain areas.
  • Parliament can repeal the powers of the enabling act at any time.
  • Delegated Powers Scrutiny Committee - Estbalished in HOL 1993 to consider whether any Enabling act passed has given away too much power, or given inappropriately.
  • It reports findings to the HOL, before the committee stage of the Bill, but has no power to amend an Act themselves.
• What is the main reason for the Delegated powers scrutiny committee?

  To ensure power is not excessive.
• 2.Control by committees states that SI and By laws must be approved.

  This is done in 2 ways:

  1. Positive resolution

  • SI will not become law unless specifically approved by Parliament
  • This requirement will be included in the Enabling act
  • Parliament can only annul, withdraw the SI - they cant ammend it

  2. Negative resolution

  • The SI will be laid before parliament
  • The relevant SI will be law unless rejected by Parliament within 40 days
• 2.Control by committees consist of:

  Questions in parliament - Individual ministers may be questioned by MPs in Parliament on the work of their department and this can include questions about the proposed regulation.

  • It aims to find out if the power is used reasonably and fairly.

  Joint select committee - The JSC where necessary will draw attention to both houses of parliament to point that need examination, after it has passed.

  • They have no power to amment an Act themselves.
• What are the main grounds for the Joint select committee to refer a SI back to the house of parliament?

  1. It imposed tax or a charge
  2. It has a retrospective effect
  3. Has gone beyond the power under the Enabling act
  4. It has an unusual or unexpected use of power
  5. It is unclear or defective
• 3.Control by the courts

  • the procedure of challenging delegated law is called judicial review
  • In order to go through the procedure of judicial review Locus standi is required
  • Locus standi means the right to bring an action or appear in court
  • The court has the power to declare a delegated law ultra vires, this means void, as whoever made it has went beyond their power.
• What is Locus standi?

  This is the right to bring action or to appear in court.
• What are the 2 types of Ultra vires?

  Substantially Ultra Vires and Procedurally Ultra Vires
• Substantially ultra vires is where the delegated legislation itself goes beyond what parliament intended in the Enabling act.

  • AN ABUSE OF POWER
• Procedurally ultra vires is where the delegated legislation did not follow the procedural rules set out in the Enabling act for the body to follow, deeming it void.
• What case shows Substantial Ultra Vires?

  Strictland v Hayes Borough Council
• In Stictland v Hayes Borough council a by law prohibiting the singing or reciting of any obscene song or ballad and the use of obscene language generally was held to be unreasonable and therefore, ultra vires because it was too wide in that it covered acts done in private as well as public.

  Therefore it had gone beyond the power given in the enabling act.
• What case shows Procedural ultra vires?

  Aylesbury mushroom case
• In the Aylesbury mushroom case before establishing a youth training scheme the minister of labour had to consult any organisation representative to engaging in the activity concerned.

  He failed to consult the Mushrrom growers association, which represented 85% of mushroom growers, this meant that establishing the training board was ultra vires and ineffective to mushroom growers only.