delegated legislation

• Delegated legislation

  .Parliament is the supreme law making body. However, if they tried to make every little law they would be swamped. Therefore, they have created a system known as delegated legislation.

  .Delegated legislation is laws made by some person or body ( like government ministers and councils ) other than parliament, but with the authority of parliament. (this is sometimes referred to as secondary legislation).
• Bodies that can make laws under delegated legislation 


  .Council e.g. bristol council making the clear air zone

  .Private rail companies e.g. london transport

  .Ministers from Government departments e.g. mat hancock making covid laws

  .Local authorities e.g. age raised to stay in education until 18

  .The authority is usually laid down in a ‘parent’ act of parliament known as the enabling act which creates the framework of the law and then delegates power to others to make more detailed law in that area. 
• 3 types of delegated legislation

  .Order in council - made by the King and Privy council

  .Statutory Instrument - made by Government Ministers

  .By Laws - made by local authorities

  .Devolution (a type of by law) - made by Welsh and Scottish Parliaments
• Orders in council

  .The king and privy council have the authority to make orders in council. 

  .Privy council is made up of the Prime Minister and other leading members of the Government - effectively allows Government to make legislation without going through parliament. 

  .The current power to make emergency orders in council is granted under the civil contingencies act 2004

  .Examples : 

  -Make laws faster in emergencies e.g. coronavirus pandemic to wear masks, social distancing, groups of 6 etc
• Statutory instruments

  .Refers to rules and regulations made by Government Ministers who are given authority to make regulations for areas under their particular responsibility. 

  .Major law making method as about 3,000 statutory instruments are brought into force every year ( most popular type of delegated legislation )

  .Essentially each minister deals with a different area of policy and can make rules and regulations in respect of matters in which it deals e.g. minister for work and pensions will be able to make regulations on work related matters such as health and safety at work
• Statutory instruments

  .Under the police and criminal evidence act 1984 (PACE 1984) the home secretary was given the power to create laws about how the police should exercise their power.

  .Government Ministers are able to develop complex areas of law in a more detailed way than an Act of Parliament5 as they have the expertise in that area. 
• By laws

  .Made by Local authorities, county councils, district/town councils, public corporations or public bodies e.g. railways can make laws about public behaviour on their premises. These bodies can make laws because of their local knowledge of the area like the bristol clean air zone. 

  .By Laws only affect the area they are made for
• By Laws - Devolution : 

  .Devolution is a type of By Law that affects a whole region

  .This means the Welsh government can make Laws without reference to the UK government, the same as Scotland and Ireland.

  .This was granted by part 4 government of wales act 1998, but the full law making power did not take effect until government of wales act 2006 e.g. no tuition fees in Scotland and wales dont have SATS in primary school.
• Control of delegated legislation

  .As delegated legislation is made by non-elected bodies and, since there are so many people with the power to make delegated legislation, it is important that there should be some control over this 

  .Control is exercised by 3 main ways : 

  -Parliament

  -Committees 

  -Courts
• Control by Parliament 

  .This is all about controlling the enabling act

  .Delegated powers of scrutiny committee - established in 1993 in the House of Lords to consider whether any Enabling ACt being passed has given away too much power, or given inappropriately

  .Reports its findings to the Lords before the committee stage of the bill, but has no power to amend an Act themselves. 
• The enabling act

  .The enabling act - sets boundaries within which delegated legislation is to be made. State which Government Minister can make the regulations, the types of laws to be made and whether they can be made for the whole country or certain areas. Parliament can repeal the powers of the enabling act at any time.
• Control by committees 

  .Statutory instruments and By laws must be approved which is done in two ways : 

  .1) Affirmative/positive resolution

  • Statutory instrument will not become law unless specifically approved by parliament (both houses of parliament must agree with the instrument)
  • This requirement will be included in the enabling act 
  • Parliament can only annul, withdraw the statutory instrument - not amend it
• Control by committees 

  .Statutory instruments and By laws must be approved which is done in two ways : 

  .2) Negative resolution

  • The Statutory instrument will be ‘laid before parliament’ 
  • The relevant statutory instrument will be law unless rejected by parliament within 40 days

  .Orders in council dont go through the processes above as they've already been approved by EU process, or its an emergency therefore there is no time to approve them. 
• Control by committees

  .Questions in parliament - individual ministers may also be questioned by MPs in Parliament on the work of their parliaments, and this can include questions about proposed regulations.
• Control by committees

  .Join select committee - Joint select committee on statutory instruments is different from the House of Lords Select committee. The joint selection committee where necessary will draw attention of both houses of Parliament to points that will be needed. This committee only checks statutory instruments and by laws. 

  .Just like the scrutiny committee they have no power to amend an Act themselves.
• Control by committees

  .Main grounds for Joint Select Committee to refer a statutory instrument back to the House of Parliament are : 

  • It imposes a tax or charge
  • It has a retrospective effect
  • Has gone beyond the power under the enabling act
  • It is an unusual or unexpected use of powers
  • It is unclear or defective.
• Control by courts

  .All secondary legislation can be challenged as seen in the case of Pickin v BRB

  .The procedure of challenging delegated law in the courts is called judicial review - this is a particular type of process that a case will follow

  .In order to go through the procedure of judicial review locus standi is required

  .Locus standi means the right to bring an action or appear in court 

  .To prove you have locus standi, you must prove the delegated legislation has affected you. 
• Control by courts

  .The court has the power to declare a delegated law ultra vires.

  .If a delegated legislation is declared ultra vires it becomes void and ineffective

  .Ultra vires means going beyond what parliament had intended

  .The two types of ultra vires : 

  • Substantially ultra vires
  • Procedurally ultra vires
• ultra vires

  Substantially ultra vires - this is where the delegated legislation itself goes beyond what parliament had intended in the enabling act. (where the actual content of what was written in the enabling act has not been followed)

  Procedurally ultra vires - this is where the enabling act sets out procedural rules to be followed by the body which has been given the delegated power. Yet, the court can find the delegated legislation to be ultra vires and void if these rules were not followed. (process of how the delegated legislation needs to be made has not been followed)
• .Cases that show ultra vires : 

  
  

  .1) Substantially ultra vires - Strickland v Hayes Borough Council 1896.

  • A by law prohibiting the singing or reciting of any obscene song or ballad and the use of obscene language generally was held to be unreasonable and therefore, ultra vires as it was too widely drawn in that it covered acts done in private as well as public. Therefore, it had gone beyond the power given in the enabling act 
• Cases that show ultra vires

  .2) Procedurally ultra vires - Aylesbury Mushroom Case 1972

  The minister of labour's failure to consult everyone, but the mushroom growers association, which represents about 85% of all mushroom growers meant the establishment of a training board were held to be ultra vires and ineffective, but ONLY FOR MUSHROOM GROWERS. For every other type of grower e.g. strawberry growers etc it would be valid. He was meant to tell all farmers but left out the mushroom farmers
• Advantages of delegated legislation

  .Saves Parliaments time

  .To deal with complex and technical issues e.g. health and safety regulations

  .Quicker and easier to amend and update than primary legislation

  .Able to respond quickly to emergencies (orders in council)

  .Allows for local variation to meet local needs
• Disadvantages of delegated legislation

  .Undemocratic -giving power to individuals, takes the decision away from the democratic process

  .Risk of sub delegation - legislation is made by people other than those who were given the power initially

  .Lack of publicity - although published, they tend not to be under the same public scrutiny

  .Large volume - keeping track can be difficult, and delegated legislation outnumbers acts of parliament by five to one.