Delegated législation

• What is delegated legislation?

  Laws made by individuals or a body other than Parliament, but with the authorisation of Parliament
• Reasons for delegated legislation

  Reasons

  1. Lack of Parliamentary time
  2. Specialist laws require specialist knowledge
  3. Laws need to be made in times of emergency
• What Act enables Parliament's ability to pass power?

  The Parent Acts: including

  • Who passing power to
  • What power they are giving
  • Framework on the law
• Example of Parent Act

  S2 of the National Minimum Wage Act 1998, sets the framework out for the Secretary of State to make laws on hourly NMW
• Who can the power be passed to?

  Either of:

  1. Government Ministers (Statutory instruments)
  2. Local Authorities & Public Corporations (Bylaws)
  3. The Privy Coyncil (Orders in Council)
• Statutory instruments

  Made by Givernment Ministers:

  • Specialist laws for certain areas(transport/healthcare/education)
  • Bringing new Act of Parliament into force via commencement date
  • Updating the law where necessary
• Statutory instruments example

  National Minimum Wage Act 1998, Secretary of State has power to make laws updating NMW on an annual basis. Shown in the National MInimum wage (Amendement) Regulations 2023
• Who has power over orders in council?

  Power passed to privy council (monarch,government ministers,senior politicians,members of HoL/HoC)
• What are orders in council used for?

  Update laws in times of emergency using Emergency Powers Act 1920 and the Civil Contingencies Act 2005.

  (Or dissolve Parliament)
• Exeample of orders in council

  Under the United Nations Act 1946, the Privy Council made it an offence to provide funds for terrorism and allowed banks to freeze these funds under the Terrorism (UN Measures) Order 2001
• Bylaws

  Passing power to local Authorities and Public Corporations

  • To update laws in specific areas
  • Regulating behaviour in certain areas
• Example of bylaws

  The Animal Welfare Act 2006 allowed Blackpool council to create regulations on the working hours of donkeys using the Blackpool Donkey Charter 2022
• Parliamentary controls

  6

  • Enabling Act
  • Affirmative Resolution
  • Negative resolution
  • Scrutiny committee
  • Publication of sis and questioning
  • Approval of bylaws
• Enabling act (PC)

  Creates guidelines/framework for how a piece of delegated legislation is to be created and it's limits to who can create lwa and circumstances allowing so.
• Affirmative resolution (PC)

  If parent act contains provision that statutory instruments 'must be laid before Parliament'

  • SI must go through affirmative resolution procedure
  • Parliament must specifically approve of SI
  • MOSTLY OF PUBLIC IMPORTANCE
• Example for affirmative resolution

  The Coronavirus Regulations
• Negative resolution (PC)

  Due to Parliaments limited time, will not go through AR

  • SI can become law without Parliamnet considering them after 40 days
  • If house rejects then there will be debate and vote
• Scrutiny comittee

  Set up in 1973 to look at SI and decide if any should be brought to Parliaments attention

  • If impose tax
  • Go beyond powers given
  • Not following procedure set out
  • Retrospective effect
  • Need clarification
• Publication of SI and Questioning

  Statutory Instruments Act 1946

  • SI must be published in accordance
  • Gov ministers will also be questioned by Parliament
  • Gives publicity
• Approval of bylaws

  Council/relevant body must propose bylaws to relevant gov minister for approval
• Limitations of PCs:Scrutiny committee

  Most effective of controls as many SI are subject to some Scrutiny, but impossible to review all
• Limitations of PCs (Resolution Procedure)

  Most passed by negative resolution, so not necessarily brought to Parliament's attention
• Limitations of PCs (affirmative resolution)

  Only SI considered controversial for general public importance are reviewed
• Limitations of PCs (publishing)

  Doesn't mean they are read by all/ everyone aware of them
• Judicial controls

  2

  1. Declaring legislation as 'ultra vires'
  2. Declaring legislation as 'unreasonable'
• Types of 'ultra vires' (JC)

  'Beyond the powers' given by Parliament

  1. Procedural
  2. Substantive
• Procdeural ultra vires

  If body doesn't follow procedure in Parent Act when creating new legislation, it may be challenged and struck out by courts
• Example of procedural ultra vides

  Aylesbury very Mushrooms

  • Minister of Labout required under Parent Act to consult 'any organisation that appears to be representing of substantial numbers of employers engaging in activity concerned'
  • Failed to notify 85%
  • Declared ultra vides