Delegated Legislation

• 3 ways that Delegated Legislation can be passed:

  • Bylaws
  • Statutory Instruments
  • Orders in Council
• Bylaws - laws made by local councils, such as parking restriction. Also includes laws made by public corporations such as National Rail.
• Statutory Instruments - Laws made by government ministers who are the heads of government departments, such as the Minister of Education who made decisions about A Level exams during coronavirus.
• Orders in Council - Laws made by the Kind and Privy Council, which can be passed in emergency situations such as following 9/11. They were also used to pass EU Directives into law.
• Bylaws:

  • R v Fadol (2007) - feet on train seat. 1889 Railway Regulations Act. Train operator Merseyrail.
  • Boddington v British Transport Police (1998) - smoking on train. British Railways Board Bylaws 1965. British Railways Board and train operators acting underneath it.
• Statutory Instruments:

  • Government Departments:
  • transport
  • Digital culture, media and sport
  • Defense
  • Health and Social Care
  • Home office
  • Treasury
  • Environment, Food and Rural Affairs
  • Justice
  • Education
• Statutory Instruments:

  • Sometimes departments will have powers to change whole areas of law, however sometimes they will only be able to change a small part of a law.
  • Example, the Dangerous Dogs Act 1991 was passed by Parliament to ban certain breeds of dog, however they allowed the Home Department to add further breeds of dog in the future through a Statutory Instrument.
  • Example, the Police and Criminal Evidence Act 1984 which governs police procedures, and allowed the Home Secretary to add in details on stop and search procedures.
• Statutory Instruments:

  • These are widely used, up to 3000 being passed each year.

  Process of Statutory Instruments:

  • A Parent/ Enabling Act will be passed by Parliament using the usual law making process.
  • This Parent Act will set out the powers that the government department have.
• Process of Statutory Instruments:

  • Government departments will then be able to make changes to the law as long as they follow the rules set out in the Parent Act.
  • Sometimes these rules will require specific processes to be followed before the law will be passed, such as consultation with certain groups.
• Ordered in Council:

  Who are the Privy Council? - The Privy Council is made up of the Prime Minister, other leading members of the Government, members of the Royal Family, senior judges and members of he cleargy.
• When can the Privy Council make laws?

  1. Emergency Situations (under Civil Contingencies Act 2004)
  2. To give effect to EU Directives.
  3. To transfer responsibility between government departments
  4. To bring Acts or parts of Acts into force
• How do the Privy Council make laws?

  The law will be drafted by Government and then passed to the Privy Council to be read and approved.

  Example - following the 9/11 terror attacks, the Privy Council passed an Order in Council to freeze the bank accounts of suspected terrorists. They were able to do this within 48 hours of the attacks taking place. This was later enforced by Parliament under the Anti-Terrorism, Crime and Securities Act 2001.
• Reasons for Delegated Legislation:

  • Time
  • Local Knowledge
  • Expert Knowledge
  • Emergency/ Speed
  • Future Needs
  • Flexibility
• Time:

  Parliament has more time for tasks which may be more urgent. Would not have time for 3000 statutory instruments. Example - dealing with covid nationally whilst local governments look at local lockdowns (Coronavirus Act 2020). However some issues are too important to be delegated even if it does save time.
• Local Knowledge:

  Local governments have a clearer idea on what is need in their local area. Example - Parking restrictions in Wolverhampton on matchday (Local Government Act 1972). However Parliament needs to retain some control so local groups don't exceed powers.
• Expert Knowledge:

  Those working in government depts. have more expertise on complicated topics such as tax law. Example - Home Department has better idea on police practices (PACE 1984). However the work of these departments should still be checked by Parliament.
• Emergency/ Speed:

  Parliament takes months to introduce a new law through the legislative process - whereas SI's and OIC's can take only hours. Such as law freezing bank accounts of suspected terrorists following 9/11 (Civil Contingencies Act). However rushed laws can lead to errors and this can have a negative impact on the quality of laws being passed.
• Future Needs:

  Parliament can allow any future amendments for a law to be addressed quickly through SI's. Dangerous Dogs Act 1991 - Home Office could add more breeds of dog if needed. However, over time this can lead to disjointed legislation that may be incoherent.
• Flexibility:

  When Parliament makes laws they have to go through a set process and stick to a strict timetable, but delegated bodies have flexibility and do not need to do this. Example - under Local Government Act 1972, local councils have the flexibility to make local laws whenever they need to. However, too much flexibility given to these bodies can lead to an abuse of these powers so checks need to remain in place.