Delegated Legislation

    Cards (36)

    • Why do we need Delegated Legislation? (1)
      Lack of Parliamentary Time - Parliament does not have enough time to consider and debate every small detail of complex regulations, and so passes on some of its power to make legislation to other bodies to save time.
      Quicker to Pass Legislation - Process of passing an Act through Parliament takes a considerable amount of time, may not be able to pass a law quick enough for its requirements.
    • Why do we need Delegated Legislation? (2)
      Easier to Amend - D.L is preferential as it can be amended or revoked easily if required. Keeps law up to date and allows ministers to respond to new or unforeseen situations by amending or simplifying statutory instruments.
      Technical expertise can be used - Parliament may not have the necessary technical expertise or knowledge required for the more complex law. For example, health and safety regulations in different industries need expert knowledge, while local parking laws need local knowledge.
    • Why do we need Delegated Legislation? (3)
      — The Consultation can be More Extensive - Consultation is important on laws about technical matters where regulations are required to be technically accurate and workable. Acts, give power to make delegated legislation sets that there must be consultation before the regulations are created.
      Codes of Practice set in Police and Criminal Evidence Act 1984 states if any codes are to be revised or added, consultation must take place between: Persons representing the interest of police authorities, The General Council of the Bar, The Law Society.
    • Types of Delegated Legislation.
      Orders in Council.
      Authorised by - The King and Privy Council.
      Effect - Either National or Local, regarding the specific activity that it is aimed at.
      Characteristics - Drafted by Government Minister, Approved by the King and 3 or 4 of the Privy Councillors. Can be used in an emergency situation under The Emergency Powers Act 1920 and The Civil Contingencies Act 2004 and during times when Parliament is not sitting (e.g. Fuel Crisis 2000)
      EXAMPLE - Misuse of Drugs Act 1971.
    • Types of Delegated Legislation
      Statutory Instruments
      Authorised by - Government Ministers or Government Departments.
      Effect - National.
      Characteristics - Regulations (Road Vehicles Regulation 2001), Orders (Foot and Mouth Disease Orders), Rules (The Prison Rules 1999), Codes of Practice.
      Around 3000 created each year.
      EXAMPLE - Protection of Freedoms Act 2012
    • Types of Delegated Legislation.
      By-Laws
      Authorised by - Either Local Authorities or Public Corporations.
      Effect - Local or can be restricted to the provision of a public corporation service.
      Characteristics - Local by-laws cover matters of local concern (parking regulations), Public corporation by-laws cover matters that effect the public using their services (Smoking on trains), Must be approved by the relevant government department to be enforceable.
      EXAMPLE - Local Government Act 1972, gave local authorities wide-ranging powers to make by-laws upon areas such as local highways.
    • Parliamentary controls on delegated legislation.
      Enabling Act
      — Parliament sets out boundaries within the Enabling Act which gives authority for the delegated legislation to be made.
      — The Act clearly defines the nature and scope of the power being delegated and to whom the power is being delegated in order to prevent abuse of power.
      — Sets strict procedures and limitations upon the person to whom the power has been delegated.
    • Parliamentary controls on delegated legislation
      Enabling Act (2)
      — Act will often say that the person who is being given the power to make delegated legislation must consult with certain parties, including experts within relevant field or parties likely to be affected by the legislation.
      — If the delegated body abuses the power, the legislation they made under it will be declared void.
      Publication of all statutory instruments is required under the Statutory instruments Act 1946, this creates transparency.
    • Parliamentary controls on delegated legislation
      Delegated Powers Scrutiny Committee
      — Established in 1992 in the House of Lords to:
      • Review the extent to which legislative powers are delegated by Parliament to other bodies.
      • Scrutinise the provisions of any Bills that allowed delegated powers to make Statutory instruments.
      — The Committee reports its findings to the whole House of Lords before the Committee Stage if the Bill but has no power to actually amend the bill.
    • Parliamentary controls on delegated legislation
      Scrutiny Committees
      Joint Committee on Statutory Instruments is appointed to consider statutory instruments made under the power given by Enabling Act.
      — Has the power to draw to the attention of both Houses to a statutory instrument that is unlawful on a number of grounds such as: Imposes a tax or charge, Appears to have retrospective effect (applies to the past), Exceeded powers or has an unusual or unexpected use of those powers, It is unclear or defective in some way.
      — The Committee can only report back its finding, not alter it.
    • Parliamentary controls on delegated legislation.
      Laying Before Parliament (1)
      Affirmative Resolution.
      Least common procedure.
      — Statutory instrument is laid (presented) before Parliament.
      Required to vote.
      — Will only become law if a motion and vote approving it, it is passed within a specified time. (Usually 28 to 40 days)
      — Approval of both Houses is required so it is a stricter form of control.
    • Parliamentary controls on delegated legislation.
      Laying before Parliament. (2)
      Negative Resolution
      Most common procedure.
      — Allows any MP to put down a motion to annul the delegated legislation within a specific time period (usually 40 days).
      — Either House (or both) may object.
      — At the end of the 40 days the instrument will become law UNLESS Parliament has objected to it within the allocated time. (If Parliament says nothing statutory instruments will become law).
    • Parliamentary controls on delegated legislation.
      Laying before Parliament (3)
      Super Affirmative Resolution. (What it is)
      — Involves an additionally stage of scrutiny, Parliament considers a proposal for statutory instrument before the statutory instrument is formally presented (Laid). This procedure is used for S.I that are considered to need a particularly high level of scrutiny (Legislative and Regulatory Reform Act 2006).
    • Parliamentary controls on delegated legislation.
      Laying before Parliament (4)
      Super Affirmative Resolution (How it works)
      Minister presents a proposal for a statutory instrument and an explanatory statement. Committees in the House of Commons and House of Lords consider the proposal and can make recommendations. Then the Minister can formally present (lay) a draft of the statutory instrument under the affirmative procedure.
      — Statutory instruments that go through Super Affirmative Resolution usually amend or repeal Acts of Parliament.
    • Parliamentary controls on delegated legislation.
      Questions in Parliament.
      Individual Ministers can be questioned about the laws and rules that they are making under any delegated powers.
      — The MP’s in Parliament can question the individual Minister about the work of their department and proposed regulations they are working on.
      — Questions will hold them to account to ensure that powers are not being exceeded when they are making delegated legislation.
    • Ao3 - How effective are Parliamentary Controls?
      Enabling Act
      Effective - Allows Parliament to set limits on the powers they are delegating, and detailing who can make the law. If Parliament is not happy with the use of powers they can repeal or amend the Enabling Act. Upholds Parliamentary Supremacy laws made in line with Parliaments wishes.
      Ineffective - Powers can be too wide, can pass a large amount of law making powers meaning they can make rules on lots of different areas of law.
    • Ao3 - How effective were Parliamentary Controls?
      Delegated Powers Scrutiny Committee.
      Effective - Look at proposals in the Enabling Act before it is enacted, making sure powers are controlled adequately. Ensure that only appropriate law powers are delegated by scrutinising and checking it beforehand.
      Ineffective - If problems are found, they can only report it back to Parliament, they cannot make changes themselves.
    • Ao3 - How effective are Parliamentary Controls?
      Affirmative Resolution.
      Effective - Parliament has a stronger role when using this as they must actually vote to accept the statutory instrument. They have to scrutinise that the power is being used effectively and that it is in line with the delegated law making powers.
      Ineffective - The method is rarely used, suggesting it is an ineffective control on delegated legislation. Very time consuming and can not be used for all statutory instruments.
    • Ao3 - How effective are Parliamentary Controls?
      Negative Resolution
      Effective - Gives MP’s the opportunity to check the statutory instrument in detail, makes it an easier process. They don’t have to spend time voting, if no one objects it will automatically pass in 40 days.
      Ineffective - Quite often these statutory instruments are not considered by Parliament due to lack of time, meaning it could be passed without approval.
    • Court controls on delegated legislation.
      Ultra Vires.
      Means - Beyond their power.
      When using this judges are questioning the validity of the piece of delegated legislation and this can be done by a Judicial Review.
    • Court controls on delegated legislation.
      Substantive Ultra Vires.
      — Court may decide a piece of delegated legislation has been made by a body who have exceeded their powers.
      — If this is the case the courts will declare the law void and of no effect.
      EXAMPLE - R v Home Secretary, Ex Parte Fire Brigades Union - The House of Lords ruled that the Home Secretary had acted unlawfully and exceeded their powers given under the Criminal Justice Act 1988.
    • Court controls on delegated legislation.
      Substantive Ultra Vires for Unreasonableness
      — The piece of delegated legislation is ultra vires because the law that has been made is unreasonable meaning it is not acceptable or fair.
      EXAMPLE - Strictland v Hayes Borough Council - This By-Law was unreasonable and ultra vires as it was too widely drafted as it covered both public and private property.
    • Court controls on delegated legislation.
      Substantive Ultra Vires for Unreasonableness (Case 2)
      Associated Picture House v Wednesday Corporation - The Court of Appeal stated that in certain circumstances the Courts could override decisions made by delegated bodies if they had been made in an unreasonable or irrational way.
    • Court controls on delegated legislation.
      Procedural Ultra Vires
      — The piece of delegated legislation is ultra vires because the correct procedure has not been followed when making it. This procedure will have been set out in the Enabling Act.
      EXAMPLE - Aylesbury Mushroom Case - The Minister established a training board but it was invalid for mushroom growers as the minister failed to consult the organisation however as other organisations had been consulted it was valid for them.
    • Ao3 - How effective are Court Controls?
      Effective - Power of the Courts
      DP- The courts can check the piece of delegated legislation and declare it void if it is unreasonable or has not followed the correct procedure.
      WDP- This highlights the issue to Parliament and public. Will deter a delegated body from creating a law that is ultra vires.
    • Ao3 - How effective are Court Controls?
      Effective - Provides a check on Law Making.
      DP- It provides a check on law making powers. The judiciary are able to declare a piece of delegated legislation void when makers have not followed the criteria set by Parliament, therefore going against Parliament’s intentions.
      WDP- Highlights when a body has gone beyond powers granted by Parliament. This is good as they have acted against the ultimate law making body.
    • Ao3 - How effective are Court Controls?
      Ineffective - Enabling Act powers are too wide.
      DP- Many Enabling Acts give ministers very wide discretionary powers making it difficult for the court to reach a finding of ultra vires.
      WDP- Easy for delegated bodies to exceed what Parliament intended. Hard for the court to find them ultra vires.
    • Ao3 - How effective are Court Controls?
      Ineffective - The Law will already be in force.
      DP- Ultra vires is only available once the piece of delegated legislation is in force and somebody has gone through the process of the claim. This will be time consuming and the piece of delegated legislation that has been made ultra vires would have been in effect for a significant amount of time.
      WDP- Courts can only control delegated legislation once it is in force, meaning we have to wait for the law to be in place before stopping it and declaring it ultra vires.
    • Ao3 - Advantages of Delegated Legislation.
      P- Saves time and money for Parliament.

      DP- Parliament does not have the time to debate every small detail of complex regulations. Making such regulations through D.L saves time and Parliament can focus on broader policy issues.
      WDP- Regulations are behind due to Brexit and Covid.
    • Ao3 - Advantages of Delegated Legislation.
      P- Allows for the use of technical and local expertise that Parliament does not have. 

      DP- Parliament may not have the necessary technical expertise or knowledge required to pass a law. It is better for Parliament to debate the main principles thoroughly, but leave detail to the experts.
      WDP- For instance for By-Laws, the local council will know the local area better than Parliament.
    • Ao3 - Advantages of Delegated Legislation.
      P- Allows for more thorough consultation.
      DP- Ministers can have the benefit of further consultation before regulations are drawn up. This is because they don’t follow the legislative process.
      WDP- Consultation is particularly important for rules on technical matters, where it is necessary to make sure that the regulations are technically workable.
    • Ao3 - Advantages of Delegated Legislation.
      P- Controls.
      DP- There are a range of controls from Parliament and Courts which keep a check on any delegated legislation being made.
      WDP- The Enabling Act allows for Parliament to set limits on any delegated powers. This is, therefore, upholding Parliamentary Sovereignty.
    • Ao3 - Disadvantages of Delegated Legislation.
      P- Undemocratic.
      DP- Delegating law-making to lower bodies ultimately takes law-making away from the democratically elected House of Commons and allows for non-elected people to make the law. E.g. The King making Orders in Council.
      WDP- If there is sufficient control over the delegated body then it is acceptable, however Parliaments control is often limited. This does not apply to By-Laws, they are made by locally elected councillors.
    • Ao3 - Disadvantages of Delegated Legislation.
      P- Issue of sub-delegation.
      DP- This means that law making powers are handed down to another body by the original delegated body. Not the minister who is doing most of the work.
      WDP- This causes people to fear that much of our law is made by civil servants and merely ‘rubber-stamped‘ by the Minister in charge of that department.
    • Ao3 - Disadvantages of Delegated Legislation.
      P- Vast amounts makes the law complicated.
      DP- A huge amount of delegated legislation is created each year. This makes it difficult to discover the current law.
      WDP- This is also made worse by the fact that there is a lack of publicity of delegated legislation as much of it is made in private and outside the public debates of Parliament. Not easily accessible like Acts of Parliament.
    • Ao3 - Disadvantages of Delegated Legislation.
      P- Language used is too complex.
      DP- Delegated legislation is often drafted in obscure language that can lead to difficulty in understanding what the law actually says.
      WDP- If we do not know what the law is, we cannot follow it.