Chapter 8: Delegated Legislation Flashcards
What is deelgated legislation?
Where executives are allowed to legislate
- Legislation can be made on a large scale
- Very minimal parliamentary involvement (so very quick)
What is delegated legislation also known as?
- Delegated legislation
- Secondary legislation
- Subordinate legislation
What are 2 types of delegated legislation?
Statutory instrument
Order in Council
What are statutory instruments? When is it used?
Statutory instrument
- Majority of delegated legislation is made in the form of SI, which is regulated by the Statutory Instruments Act 1946
- The Act sets out different parliamentary procedures when ministers decide to legislate
What is an Order in Council? When is it used?
More important/serious concerns
- An enabling provision of a parent Act will specify the SI take the form of Order in Council
Also a type of SI, but differs slightly
- Also signed by a minister before parliamentary procedure
- But has extra formalities - being approved at one of the monthly meetings of the Privy Council
- Where Queen & some senior ministers approve without debate (very quick)
Note
- Order in Council also refers to a type of primary legislation
- Where the Crown retains prerogative power to make legislation for specific matters (i.e. regulation & civil service)
What is the main problem/critisims with delegated legislation?
- Sometimes delegated legislation is used to give authority to a policy
- Which may be constitutionally suited for primary legislation instead
Note
- As it also receives less political scrutiny - (where’s the democracy?)
What academic shares the common justifications & common critisims of delegated legislation?
R. Baldwin in “Legislation, types of,” -
Common justification
- Parliament does not have the time or the detailed knowledge to make specialist bodies of rules
- Some subject are too technical/detailed to justify parliament’s intention
- More flexible and responsive than statute
- Allows adjustments & updating/amending more efficiently
Common criticisim
- Modern legislation is carried out by means of ‘framework’ items of primary legislation, which confers a lot of power to ministers to legislate
- Leads to weakening of parliamentary & democratic scrutiny by such heavy reliance on secondary legislation. Since it doesn’t involve full parliamentary process & debate stages as per primary legislation
What are the 5 reasons why critical views on delegated arise in the first place?
why there is a debate to begin with
1) Objection to ‘skeleton bills’ (framework/ordinary bills)
- For delegated legislation to determine principles, rather than detailed/important ones
2) Increased power given to Ministers
- Lack of parliamentary time for scrutiny of delegated legislation and inadequate parliamentary scrutiny
3) Difficulty of campaigning against bills that include extensive delegation of powers & against draft orders etc.
4) Statutory instruments can’t be amended
- Danger of draftsmen relying on regulations to fix flaw in bills (if any)
- As drafting SIs sometimes delayed too close to time it is rectified/applied
5) Uncertainty of leaving & waiting for regulations to be made
- Difficulty of discovering law if it is buried in numerous SIs
What authority shares the 4 advantages that were found in their study?
Hansard Society
Hansard Society -
1) Keeps primary legislation uncluttered (not clumpy/messy)
- Give more detailed matters to delegated legislation
2) Very quick
- Not subject to constraints of the parliamentary timetable/process as primary legislation
- Which can increase time for more consultation/debates
3) Flexibility
- Flexibility in updating the law to match changed circumstances & correcting or amending with experience
4) Value for VAT and other fiscal legislations (tax/money bills)
- Can change & create new law for issues pertaining taxes and money
What should and shouldn’t be delegated, that was stated by the Hansard Society?
Should not
- Statutory delegation should never leave an Act bare of everything except a framework of ministerial powers
Should
- Main principles/provisions (frameworks) should appear in Act itself;
- Detail/substance to be left for delegated legislation
What are the 4 purposes of delegated legislation stated by the Hansard Society?
- Bringing sections of Acts into force
- Filling in framework Acts
- Implementing EU law (no longer)
- Can be used to amend or repeal Acts
What are Henry VIII provisions?
Enabling provisions that confer this power on ministers are dubbed/labeled ‘Henry VIII’ provisions
- In 1997, HOL established the Delegated Powers and Regulatory Reform Committee
Function
- To monitor the inclusion of Henry VIII powers in Bills > Committee will report any concerns to HOL > If they agree, then they can amend/remove/limit the bill in question
What is the final justification given by the Hansard Society?
Delegated legislation is useful for relatively small-scale fine-tuning to the reforms being introduced by the act without the need to trouble parliament with a Bill
- Often minor problems after the Act is rectified
What are the differences of civil servants and ministers making delegated legislation>
Ministers (junior minister/Secretary of State)
- Within the relevant department - signs the text of delegated legislation produced by civil servants & government lawyers
- Note - Sometimes might be the ministers subordinate signing
Civil servants
- Produce the text/detailed provisions
What are the 2 main issues between ministers and civil servants creating delegated legislation?
- How much is the minister expected to know about the subject matter?
- Is a ministerial signature a rubber stamp for things done by officials?
What was the case that answered these issues?
R (on the application of National Association of Health Stores) v Secretary of State for Health [2005]
Issue
- Challenge to an SI made under the Medicines Act 1968
- Prohibiting the sale for medicinal purposes of a drug called kava-kava (used as herbal tranquilliser) and others under Food Safety Act 1990 banning
Sedley LJ stated
- “Given the constitutional position as this court now holds it to be a minister who reserves a decision to himself and equally a civil servant who is authorised by him to take a decision – must know or be told enough to ensure that nothing that it is necessary, because legally relevant, for him to know is left out of account. This is not the same as a requirement that he must know everything that is relevant. Here, for example, much that was highly relevant was appropriately sifted by the Commission in formulating its advice and then distilled within the department in order to make a submission to the minister which would tell him what it was relevant for him to know. What it was relevant for the minister to know was enough to enable him to make an informed judgment. This centrally included the Commission’s advice.”
Held
- COA dismissed the National Association’s appeal
What are the 3 of parliament’s role in delegated legislation?
parliament - referring to statutory instruments
1) SI perceives far less scrutiny than bills
- SIs that make commencement orders bringing sections of an Act into force
- Are subject to no parliamentary procedures at all (while others are depending on its importance)
2) SI can’t be amended or adapted by either House
- exception - Where Parent Act/Enabling Act says otherwise
3) Minister in charge will sign the SI and lay it before Parliament under draft order
- Negative procedure
- Affirmative procedure (more strict)
- Note - SIs may be subject to scrutiny by select committees
Statuttory instruments - SI
What are negative procedures and affirmative procedures? What is something to note about ministers when singing the SI, and laying it before parlaiment under draft order?
Negative procedure
- Some SIs become law on the date stated
- But will be annulled (invalid) if either house passes a motion for their annulment within a specified time
- Or if the bill regards a financial matter
- Any member of HOC may put down motion to annul SI
- Usually takes 40 days (including the day on which it was laid) to become law
Affirmative procedure (more strict)
- More stringent parliamentary control - must receive Parliamentary approval before it comes into force or remain in force
- Mostly laid in the form of draft orders - can’t be made unless the draft order is approved by both Houses (responsibility lies with the minister)
Note - SIs may be subject to scrutiny by select committees
1) Select Committee
- Committees of backbench MPs or Lords (or both)
- Joint Committee on Statutory Instruments (committee of both houses)
2) Most members have no legal expertise or training
- But each committee carries out its work with assistance of lawyer on the parliamentary staff
- The Committee takes no view on the merits of the policy contained in the SIs. But instead consider whether each SI complied with technical requirements as outline in the Standing order of each house
What is role of the courts regarding delegated legislation?
Delegated legislation is amenable to judicial review
- This means that the courts can still keep the Executives in check (through ROL) (R (on the application of National Association of Health Stores) v Secretary of State for Health)
- Even where delegated legislation is subject to the affirmative procedure in parliament (given approval), judicial review is still applicable through -
- Illegality - Legislation was done outside its enabling provision (ultra vires)
- Procedural impropriety - Consultation was flawed or non-existent
- Irrationality
What are the 2 cases that display judicial review - keeping the Executives in check?
role of the courts
- R (on the Application of Javed) v Secretary of State for Home Department [2001]
- Ahmed and Ors v HM Treasury (JUSTICE intervening) (Nos 1 and 2) [2010]
R(on the Application of Javed) v Secretary of State for Home Department [2001]
Judicial review
Issue
- COA had to consider whether Asylum (Designated Countries of destination and designated Safe Countries) Order 1996 (an SI) had been made lawfully by the Home Secretary
- The Order had been debated and approved by both Houses of parliament
Facts
- The Order sought to give effect to policy that certain countries should be designated as generally free from persecution, so enabling an expedited process to be used for returning failed asylum seekers to the countries they originally came from as the UN authorities could assume that people returned would not be subject to mistreatment
- Claimants submitted that Home Secretary had acted unlawfully in placing Pakistan on the ‘whitelist’
Held
- Home Secretary could nothave concluded on the evidence that women were not at risk from persecution in Pakistan
- The ‘whitelist’ was held irrational and the order (SI) in relation to Pakistan was quashed
Ahmed and Ors v HM Treasury (JUSTICE intervening) (Nos 1 and 2) [2010]
Issue
- UKSc had to review lawfulness of 2 pieces of delegated legislation that were designed to freeze assets of suspected terrorist
- The legislation relief on Section 1 of the United Nations Act 1946, which stated that if the UN Security Council called upon the UK to implement measures, his Majesty may by Order in Council make such provision
Facts
- The 3 claimants appeared on the list by the UN as suspected terrorists
- UK then froze their assets
- The claimants had no chance to challenge the UN or government’s determination
Held
- UKSC held that orders were ultra vires as they fell outside the scope of the 1946 Act
The enabling provision had no power to permit ministers to interfere with fundamental rights to fair process (Article 6)
