3- Law Making: Delegated Legislation

Question 1

What is delegated legislation?

Answer 1

Delegated legislation or Secondary legislation is law made by some person or body other than Par, but with the authority of Par.

Question 2

How is authority given by Par to the persons or bodies that make law?

Answer 2

Authority usually given in a Parent Act of Par usually known as the ENABLING ACT.

This Act creates the framework of the law and then delegates power to others to make more detailed law in the area (ex: Public Health (Control of Disease) Act 1984 (1).)

Question 3

Types of DL

Answer 3

After Par passses the Enabling Act, there are 3 types of DL:

1. Orders in Council (made by Privy Council)
2. Statutory Instrument (made by gov minister)
3. By-law (made by local authorities)

Question 4

DL: Orders in Council

Answer 4

Queen and Privy Council have authority to make O in C.
Privy C. made up of Prime Minister and other
leading members of gov.
- Gov can make laws without going through Par.

There must be an Enabling Act allowing the Privy C to make O in C.

Question 5

Matters Orders in Council deal with

Answer 5

1. transferring responsibility between gov departments.
2. Bringing AofP into force.
3. Make law in emergency situations

Question 6

DL: Statutory Instruments

Answer 6

Rules and regulations made by gov ministers (areas under their responsibility)
Approx. 25 departments in gov

These regulations can be very short or very long, with detailed regulations

Question 7

DL: By-laws

Answer 7

Made by local authorities to cover matters within their own area (ex: County Council can pass laws affecting the whole county- traffic control, banning drinking in public….)

Can also be made by public corporations and certain companies (matters within their own jurisdiction.) (Ex: British Airports Authority/ railways can enforce rules about public behaviour on their premises.)

Question 8

Why is control of DL needed?

Answer 8

Bc it’s made by non-elected bodies and there are many people with the power to make DL

Question 9

What types of control of DL are there?

Answer 9

1. Control by Parliament
2. The Legislative and Regulatory Reform Act 2006
3. Control by the courts

Question 10

Control of DL- Parliament: Types

Answer 10

1. Checks on Enabling Act
2. Delegated Powers Scrutiny Committee
3. Affirmative Resolutions
4. Negative Resolutions
5. Questioning of gov ministers
6. Scrutiny Committee

Question 11

Control of DL- Par: Checks on Enabling Act

Answer 11

Par sets limits, for example, it will state which gov minister can make the regulations.

It will also state the type of laws to be made and where they can be made.

It will also set out whether the gov department must consult other people before making regulations. Par can also repeal the powers in the Enabling Act at any time.

Question 12

Control of DL- Par: Delegated Powers Scrutiny Committee

Answer 12

This committee is in the HoL, and it considers whether the provisions of any Bill going through Parliament delegate legislative power inappropriately.

It reports its findings to the HoL before the committee stage of the Bill, but has no power to amend Bills.

It ensures that only appropriate powers are given.

Question 13

Control of DL- Par: Affirmative Resolutions

Answer 13

Small number of statutory instruments are subject to an affirmative resolution.
This means that the stat. instrument won’t become
a law until approved by Par. This need for
affirmative res. will be included in the Enabling Act.

However, the stat. instr. cannot be amended by Par, only approved, annulled or withdrawn.

Question 14

Control of DL- Par: Negative Resolutions

Answer 14

Most other stat. instr. will be subject to this.

The stat. instr. will be law unless rejected by Par within 40 days.

Main problem: only a few of these stat. instr. will be looked at by MPs.

Question 15

Control of DL- Par: Questioning of gov ministers

Answer 15

Individual ministers may also be questioned by MPs on the work of their departments, including questions about proposed regulations.

Question 16

Control of DL- Par: Scrutiny Committee

Answer 16

Reviews all stat. instr. and will draw the attention of both the HoL and the HoC when necessary.

It ensures that stat. instr:
- Don’t impose taxes (only elected body has the
right (Magna Carta).)
- Don’t go beyond their powers
- Aren’t retrospective
- Don’t make unusual/ unexpected use of powers
- Aren’t unclear or defective

Main disadvantages: The review is only a technical check and the Committee can only report to Par- NOT make changes.

Question 17

The Legislative and Regulatory Reform Act 2006

Answer 17

Sets out procedures for making stat. instr. which are aimed at repealing the existing law to remove a ‘burden’.

The LRRA is an Enabling Act itself. Ministers making stat. instr. under this Act must consult various people (anyone who will be affected by the new law because the power is very wide.)

Orders made under this power must be laid before Par.

Question 18

Procedures of examination of legislative reform orders by the LRRA 2006

Answer 18

1. Negative resolution procedure
   
   • When minister suggests this procedure, it will be
     used unless within 30 days one of the Houses of
     Par objects.
   • If this procedure is used, the DL won’t become law
     until it has been laid before Par for 40 days.
2. Affirmative resolution procedure
   
   • Both Houses of Par must approve the order.
   • Even though minister recommends this, Par can
     still ask for the super-affirmative resolution to be
     used.
3. Super-affirmative resolution procedure
   
   • Gives Par more control over DL

Question 19

Control of DL- Courts

Answer 19

DL can be challenged in the courts on the grounds that it is ‘ULTRA VIRES’

The validity of DL can be challenged through the judicial review procedure.
- The courts will presume that unless the Enabling
Act expressly allows it, there is no power to do any
of the following:
1. Make unreasonable regulations (like those
including public and private acts- singing
obscene songs.)
2. Levy taxes
3. Allow sub-delegation

Courts can also argue that DL is ‘ultra vires’ because the correct procedure hasn’t been followed.