Delegated Legislatiom

Question 1

Issues with parliamentary law making

Answer 1

Law not always put into affect due to time.
Slow (take several months)
Applies to whole country (not representative of local issues)

Question 2

What is parliamentary supremacy

Answer 2

Parliament is the supreme law maker and can make law on any area.
No parliament can be bound by any previous parliament
No body can override parliament.

Question 3

Orders in council

Answer 3

Made by the Queen and the privy council.
Privy council is made up of the PM and other leading members of the government.
OICs can be made in a range of situations/ for a range of purposes including:
Transferring powers between government departments;
Bringing acts or parts of acts into force;
Making laws in emergency situations – under the Civil Contingencies Act 2004. This is usually only done when parliament isn’t sitting.
Or to make laws – e.g. in 2003 an OIC was used to amend the Misuse of Drugs Act 1971 to move cannabis back to a class B drug.

Question 4

Statutory instruments

Answer 4

Ministers in the government give authority to make regulations for areas they are responsible for e.g. minister of transport would be responsible for traffic regulations. The minister for work and pensions would be responsible for health and safety regulations.
Statutory instruments can be very short and cover one point e.g. annual rise in minimum wage. Or very complex. E.g. Building Regulations 2010 which has 10 parts and 6 schedules.

Question 5

Controls on delegated legislation: parliament

Answer 5

HoL
Delegated Powers Scrutiny Committee
Enabling Act
Affirmative Resolutions
Negative Resolutions
The Joint Select Committee on Statutory Instruments

Question 6

Enabling Act

Answer 6

Will specify:
Who can make the legislation.
The extent of the legislation (what it can cover).
The procedure for creating the legislation inc. any requirements for consultation
Parliament can repeal or amend the delegated legislation.
In addition By-Laws have to be approved by the relevant minister (Greg Clark?)

Question 7

The Joint Select Committee on Statutory Instruments

Answer 7

Reviews all statutory instruments and will refer them to Parliament if they:
go beyond the powers of the enabling Act;
reveal an unusual or unexpected use of the powers; or
have been drafted defectively or are unclear.
Imposes a tax or charge
Is retrospective in effect, and the enabling act did not allow for this.
How effective is this committee?
Cannot change laws just report to HoC or HoL.
Hansard Society research in 1992 found many reports were ignored.
Cannot look at all 3000 Statutory Instruments

Question 8

The House of Lords Delegated Powers Scrutiny Committee

Answer 8

Checks all Bills for:
provisions that inappropriately delegate legislative power, or
whether the power is subject to an inappropriate degree of parliamentary scrutiny.
The Committee advises the House of Lords before the Committee Stage of the Bill.
How effective is this committee?
They look at all Bills
Plus properly drafted enabling provisions make it more likely that delegated legislation will be made properly.

Question 9

Affirmative resolutions

Answer 9

Most Statutory Instruments have to be laid before parliament. This can be done in 2 ways:
If a statutory instrument is subject to the affirmative resolution procedure (10%), it will not become law unless specifically approved by one or both Houses of Parliament. E.g. s.20 HRA 1998 requires an affirmative resolution to make amendments to the act.
There is usually a time limit of 28-40 days for approval.
Effectiveness?
Time consuming
Cannot be amended (just approved, annulled (rejected) or withdrawn)
Purpose is to control ministerial power – but by virtue of their majority the government can normally vote it through.

Question 10

Negative resolutions

Answer 10

Most statutory instruments will be subject to the negative resolution procedure (90%) whereby the statutory instrument will become law unless rejected by Parliament within 40 days.
Effectiveness?
The negative resolution procedure, which is more common, offers less control over statutory instruments.
No requirement for MPs to look at it
But does provide the opportunity for objections to be raised.

Question 11

Publicity

Answer 11

The Statutory Instrument must be published by HM Stationary office and thus be available for the public to view or it will not be fully effective – See The Statutory Instruments Act 1946
Another form of control is that the responsible minister can be questioned by Parliament at Question Time or during debates – however, this may not be that effective at holding them to account!

Question 12

Removing power

Answer 12

Parliament can always remove power to legislate from a person by amending or repealing the enabling act.
This theoretically upholds parliamentary supremacy - and encourages the delegated bodies to take care when exercising their power - assuming parliament notice an issue and actually acts!

Question 13

Courts

Answer 13

Delegated legislation can be challenged in the High Court QBD through the process of judicial review.
This was defined by Lord Brown in Ex Parte Vijayatunga as the “exercise of the court’s inherent power at common law to determine whether an action is lawful or not.”

Question 14

The grounds for judicial review are:

Answer 14

Procedural ultra vires.
Substantive ultra vires

Question 15

Procedural ultra vires.

Answer 15

This is how the law is made. Some enabling acts specify a procedure that must be followed in making the law – if it is not followed it can be declared void.
An example of this is Aylesbury Mushroom. In this case an order against mushroom growers was declared void as it did not consult with interested parties.

Question 16

Substantive ultra vires

Answer 16

This is concerned with the content of the delegated legislation. Sometimes this exceeds the powers given to it by the enabling act.
AG v Fulham Corporation – Corporation was able to provide clothes washing facilities. The corporation set up a commercial laundrette. This was deemed ultra vires as they did not have permission to wash people’s clothes for them.
See also Custom and Excise commissioners v Cure and Deeley Ltd

Question 17

Effectiveness of controls

Answer 17

Limited because courts only consider cases brought to them.
It is quite rare that someone charged with breaking the law will question that law’s validity.
Judge cannot amend – only declare it void.
However, it can help uphold parliamentary supremacy by ensuring parliament’s will is carried out.

Question 18

Advantages of delegated legislation

Answer 18

• Saves limited time in Parliament;
• Allow rapid change;
• MPs lack detailed or technical knowledge. E.g. Specific details in Abortion Act, Road Traffic detail
• Quick response to new developments, e.g. Foot and Mouth outbreaks. The Prevention of Terrorism (Temporary Provisions) Act allows the quick addition of new prohibited groups.
• Enables minor changes to statutes, e.g. Variations in sentences, approval of motor vehicle changes.
• Judicial review may be sought, by parties with locus standi, (i.e. Persons sufficiently affected by the legislation), so time is not wasted by Parliament considering them all.
• Model bylaws available from Whitehall.
• Withdrawal or amendment easy.

Question 19

Disadvantages of delegated legislation

Answer 19

implies that Parliament has insufficient time to scrutinise it. Parliament is not reviewing legislation properly.
Sub-delegation of powers a further problem (although not for EU statutory instruments), which causes complexity and confusion.
Sheer volume causes complexity - it is impossible for anyone to keep abreast of all delegated legislation.
Lack of publicity, not known about by the public (and often lawyers).
It is undemocratic as most regulations are made by civil servant or other unelected people, except for local authority bylaws made by elected councillors. Lord Hewart describes delegated legislation as “The New Despotism”
Henry VIII clauses can give power to delegated legislation or amend or repeal Acts of Parliament
The Committee on Minister’s Powers (1932) “Whether good or bad”, delegated legislation is inevitable. One member said that it was “a necessary evil, inevitable, … But nevertheless a tendency to be watched with misgiving.”