Delegated Legislation

• Delegated legislation is law made by a person or body to whom Parliament has given law-making powers.
• Many laws passed by Parliament each year provide a framework for new law.
• It is necessary for Parliament to delegate responsibility for providing the detail to a body with more expertise and time than they themselves have.
• The powers for delegated legislation are set out in the Enabling Act (or Parent Act).
• The Enabling Act sets out the limits of power and how broad the new law created by delegated legislation can be. It also sets out who the power is given to.
• Reasons for delegated legislation include:

  • Detailed law
  • Expert knowledge
  • Local knowledge
  • Consultation
• Detailed law saved Parliament time.
• Expert knowledge helps because Parliament cannot be experts in all areas.
• Local councils know their own areas.
• Some laws are very technical, ministers will take time to consult with relevant bodies.
• There are three types of delegated legislation:

  1. Order in Council
  2. By-laws
  3. Statutory Instruments
• Orders in Council are made by the King and the Privy Council.
• Orders in Council are made for a wide range of purposes:

  • Transferring responsibility between government departments
  • Giving effect to EU directives
  • Making law in times of National Emergency under the Civil Contingency Act 2004.
• Order in Council can be used to amend or update existing laws and can be made when Parliament are not sitting.
• By-laws are made by local councils and public corporations and are made to cover matters within their own areas.
• Local councils are responsible to local problems.
• Statutory instruments are rules and regulations made by Government ministers for their area of responsibility.
• Statutory instruments can vary in length and can be as short as one point.
• There are two main controls of delegated legislation: Parliament and Courts
• Parliament have affirmative resolutions and negative resolutions.
• Affirmative resolutions says that statutory instruments won't become law unless specifically approved by Parliament.
• Negative resolutions say that statutory instruments will become law unless rejected by parliament within 40 days.
• Individual MPs will be questioned by others in Parliament about to work of their departments.
• The Scrutiny Committee is a committee which reviews all statutory instruments and will report back if there are any problems with it. They can only report back, not amend anything.
• Delegated legislation can be challenged through the judicial review procedure or it may arise in a civil claim between two parties.
• Any delegated legislation which is declared ultra vires is void.
• Courts can also hold that delegated legislation is void because the correct procedure has not been followed.
• Advantages: Saves Parliamentary time.

  Parliament does not have time to consider and debate every small detail of regulations.
• Advantages: Need for technical expertise.

  Legislation required complex technical knowledge which Parliament might not have.
• Advantages: Allows consultation.

  Consultation is important for technical matters where it is important to make sure that any regulations are workable.
• Advantages: Allows quick law making.

  Delegated legislation can be very quick to make, which can be good for things like terrorism.
• Advantages: Easy to amend.

  Law can be kept up to date.
• Disadvantages: Undemocratic.

  Takes law-making away from the House of Commons.
• Disadvantages: Sub-delegation.

  Law making authority might be handed down another level by the minister in charge.
• Disadvantages: Large volume.

  Can be difficult to find out what the law is.