Delegated Legislation

• Delegated (secondary or subordinate) legislation


  Law created by a body other than Parliament, but with the authority of Parliament laid down in Primary Legislation
• Primary Legislation


  Law made by the legislature, which in the UK is Parliament.
• Disability Discrimination Act (1995)


  Example of delegated legislation
• Reasons for using Delegated Legislation


  • Parliament does not have the time to debate every detail of every Act
  • Parliament will not always have the necessary expertise to deal with a particular issue
  • Delegated Legislation can be changed more easily, which allows quicker response to changing circumstances
  • Parliament cannot always respond quickly enough in emergencies
• Statutory Instruments


  Most common form of secondary legislation, made by Government Departments
• Making Statutory Instruments


  1. Normally drafted by the legal office of the relevant government department

  2. That department consults with interested parties and bodies

  3. Made by either Affirmative Resolution or Negative Resolution as part of the parliamentary controls on DL
• By-laws


  Made by Local Authorities, public corporations and companies, usually concerning local issues or matters relating to their area of responsibility
• Making By-laws


  1. Generally passed under the Local Government Act (1972)

  2. The proposed bylaw must be advertised so local people can comment on them

  3. They are accompanied by a sanction or penalty if you ignore them
• By-laws


  • Local council may ban dogs from beaches during certain months
  • Impose fines for littering
• Orders in Council


  laws made in times of emergency, under the Emergency Powers Act 1920 - Coronavirus Act 2020
• Making Orders in Council


  1. Have to be approved by the Privy Council

  2. Must be signed by the King

  3. They can be used to amend the law

  4. Can be used to give effect to EU Law
• Example Cases of Orders in Council

  • The Misuse of Drugs Act 1971
  • The Consumer Protection Act 1987
• Devolution


  The process of transferring power from central government to regional or local government
• The Rule of Law requires that the legal system be: Innocent until proven guilty, No person can be imprisoned without a trial, Free from discrimination, Accessible and affordable
• Delegated Legislation and the Rule of Law


  needs to ensure it protects individuals' rights and keeps the laws clear and certain, through mechanisms like Accountability and Judicial review
• Advantages of Delegated Legislation


  • Flexibility
  • Time
  • Speed
  • Expertise
  • Local Knowledge
• Disadvantages of Delegated Legislation


  • Lack of Control
  • Undemocratic
  • Sub-delegation
  • Volume
• Strickland V Hayes Borough Council (1986) is an example case related to the control of Delegated Legislation
• Parliamentary Oversight of Delegated Legislation

  1. The Enabling Act sets out the parameters and procedures for the delegated power

  2. Negative Resolution - the statutory instrument automatically becomes law unless there are objections to it within a specified period

  3. Affirmative Resolution - the statutory instrument will not become law unless it has been approved by Parliament

  4. Super-Affirmative Procedure - required for SI's/Reform Orders made under the Legislative and Regulatory Reform Act 2006, with reports and express approval needed

  5. Consultation - many enabling Acts require consultation with interested parties or those who may be affected by the DL

  6. Joint Committee on Statutory Instruments (JCSI) scrutinizes all SI's for technical quality
• Judicial Controls over Delegated Legislation


  1. Judicial review - DL can be challenged under Judicial Review on the basis that it is ultra vires

  
  

  2. Procedural Ultra Vires - where the procedures laid down in the enabling Act have not been followed - e.g. Aylesbury v Mushrooms

  
  

  3. Substantive Ultra Vires - where DL goes beyond what Parliament intended - e.g. R v Home Secretary

  
  

  4. Unreasonable ultra vires - DL can be challenged if no reasonable body could have come to that decision - e.g. Associated Picture Houses v Wednesbury Corporation
• Procedural Ultra Vires


  Where decisions can be declared invalid if proper procedures aren't followed - as seen in Aylesbury v Mushrooms
• Substantive Ultra Vires


  Where decisions are invalid if they exceed the authority granted by the law - as seen in R v Home Secretary
• Strickland V Hayes Borough Council (1986) is an example case related to the judicial control of Delegated Legislation
• Unreasonable Ultra Vires


  Where courts can invalidate decisions that are extremely unreasonable - as seen in Associated Picture Houses v Wednesbury Corporation