Delegated Legislation

Question 1

What is delegated legislation?

Answer 1

Law made by individuals and institutions acting under authority from Parliament

Question 2

Parliament passes a parent/enabling Act e.g. Act of Parliament which…

Answer 2

Passes power to make law to other bodies or organisations.
Delegated powers are usually granted in an enabling Act which will establish a framework of general principles and grants powers to fill in the details to others.

Question 3

Passing an enabling act enables…

Answer 3

Queen and Privy Council to issue orders in Council
Ministers to issue statutory instruments and regulatory reform orders
Local councils or public corporations to issue bylaws

Question 4

Why do Parliament delegate power?

Answer 4

Saves time for Parliament

Question 5

What are the 3 types of delegated legislation?

Answer 5

Orders In Council
Statutory Instruments
By-Laws

Question 6

What are Orders In Council?

Answer 6

The Privy Council

Question 7

Who are the Privy Council?

Answer 7

A formal body of advisors to the Queen

Current/ex members of Parliament

Question 8

Who are the Judicial Committee of the Privy Council?

Answer 8

UKs most senior judges

The final court of appeal for many commonwealth countries and crown dependencies

Question 9

When have Orders In Council been used?

Answer 9

When a statutory instrument may not be appropriate
Transferring powers between government dependencies
Extending legislation to crown dependencies
Transfer of power to devolved assemblies

Question 10

What are Statutory Instruments?

Answer 10

Come in form of rules, orders, regulations and codes

Apply to the whole country

Question 11

How are Statutory Instruments brought in?

Answer 11

Drafted by government ministers and departments under powers given under enabling acts
Necessary expertise relevant to the area concerned is used when drafting a statutory instrument
Introduced by either an affirmative or negative solution

Question 12

Why are Statutory Instruments brought in?

Answer 12

Allow provisions of an Act of Parliament to be brought into force at a later date
Provide detail that would be too complex to include in the broad framework of an enabling act
Amend, update and enforce provisions in existing primary legislation

Question 13

What’s an example of a Statutory Instrument being used?

Answer 13

Using mobile phones when driving is banned.

Question 14

Who makes By-Laws?

Answer 14

Can be made by local authorities to cover matters in their own specific area e.g. no open fires allowed in certain parks
Also can be made by public corporations and certain companies which relate to them and their customers e.g. London Underground banned smoking

Question 15

How are By-Laws made?

Answer 15

As they are not subject to the affirmative and negative resolution procedures, they may be subject to judicial review and quashed as ‘ultra vires’ if they go beyond the limits of the enabling act
Usually based on Home office guidelines and limited to a specific geographical area

Question 16

How do you know which Bylaws affect you?

Answer 16

Notice and publication in local press is required

Copies must be available for inspection at local authority offices

Question 17

What are the 2 types of controls?

Answer 17

Parliamentary controls

Control by the courts

Question 18

What are the 5 parliamentary controls?

Answer 18

Parent/enabling act
Consultation
Laying before parliament
Questioning Government ministers
Scrutiny committees

Question 19

Parliamentary Controls:

Parent/enabling act

Answer 19

Parliament have the initial control over what powers are delegated as the enabling act sets the boundaries within which the delegated legislation is to be made

• All enabling acts state which Government Minister can make the regulations/rule/order and what they can actually do
• States the type of laws to be made and whether they can be made for the whole country or just certain areas
• Tells the law maker if they have to go through consultation and which resolution process the statutory instruments must go through

This is a control as it explains the powers of legislation
However, an enabling act cannot change any delegated legislation and can only affirm/annul it

Question 20

Consultation

Answer 20

Where the delegated body is required to consult ‘interested’ parties to find out their views on the proposed laws
Often required by the enabling act

Question 21

Parliamentary Controls:

Laying before parliament

Answer 21

Most statutory instruments must be affirmed after being presented to Parliament

Positive resolution (SI will not become law unless specifically approved by Parliament. Needed to change the Codes of Practice)

Negative resolution (SI comes into force unless rejected by Parliament usually within 40 days of being laid before Parliament. More common)

Super affirmative resolution procedure (if a minister makes delegated legislation under the Legislative and Regulatory Reform Act 2006 he is given wide powers to amend Acts of Parliament therefore the controls will be stricter)

Question 22

Parliamentary Controls:

Questioning Government ministers

Answer 22

Ministers can be questioned about their, or their departments, proposed or current delegated legislation by MPs in the House of Commons
Provides an extra check on the work that they are doing

Question 23

Parliamentary Controls:

Scrutiny Committees

Answer 23

A small group of MPs act as a filter so that Parliament only needs to consider a small number of SIs.
They review SIs and refer to Parliament that they think need further consideration.
It is a technical check only and has no power to amend
There are additional scrutiny bodies to help

Question 24

What might be a cause for concern with Statutory Instruments?

Answer 24

Imposing a tax or charge
Appears to have retrospective effect not provided for in the Act or gone beyond the powers of the Act
Makes some unusual or unexpected use of those powers
Defective in some way

Question 25

What are the controls by courts?

Answer 25

Judicial review - ultra vires

Question 26

What are ultra vires?

Answer 26

When a minister has gone beyond his powers
If it can be shown that a piece of delegated legislation goes beyond the powers given by the enabling act, then the citizen can apply to the courts for a judicial review.

Question 27

What is judicial review?

Answer 27

Where an individual can make an application to the Queen’s Bench Division of the High Court to decide if the delegated legislation is valid or not

Question 28

What are the 3 types of ultra vires?

Answer 28

Procedural Ultra Vires
Substantive Ultra Vires
Substantive Ultra Vires for Unreasonableness

Question 29

Procedural Ultra Vires

Answer 29

Challenge to delegated legislation because the correct procedure has not been followed
Aylesbury Mushroom case
R v Secretary of State for Education and Employment, ex parte National Union of Teachers

Question 30

Substantive Ultra Vires

Answer 30

Challenge to delegated legislation where a decision has been reached outside the powers given on the decision taker
R v Home Secretary, ex parte Fire Brigades Union

Question 31

Substantive Ultra Vires for Unreasonableness

Answer 31

Test: Wednesbury unreasonableness
Whether a reasonable person would consider it reasonable
Strickland v ayes
R v Swindon NHS Trust

Question 32

What is the test for substantive ultra vires for unreasonableness?

Answer 32

Associated Provincial Picture Houses v Wednesbury Corporation
Used to describe how the courts may find that a body is being so unreasonable that no reasonable authority could have decided that way.

Question 33

Advantages of delegated legislation

Answer 33

Saves parliamentary time
Flexible (quick to respond to changing conditions)
Controls over their use

Question 34

Effectiveness of delegated legislation controls.

Parent/enabling acts

Answer 34

Parliament retain ultimate control
They can revoke power and stop ministers making law
However, wording of the statutory instrument is not always clear and can be drafted very widely giving the minister a lot of power that cannot be challenged by a court

Question 35

Effectiveness of delegated legislation controls.

Positive resolution

Answer 35

Gives Parliament a more powerful way of controlling a SI as it has debated and voted on by Parliament
However, parliament can’t make changes, they can only affirm or reject

Question 36

Effectiveness of delegated legislation controls.

Negative resoution

Answer 36

Gives Parliament options. They can retain control as they have the power to reject things
However, in reality the procedure offers very little practical control and is seen as more of ‘rubber stamping’ exercise of a SI.

Question 37

Effectiveness of delegated legislation controls.

Negative resolution

Answer 37

Gives Parliament options. They can retain control as they have the power to reject things
However, in reality the procedure offers very little practical control and is seen as more of ‘rubber stamping’ exercise of a SI.

Question 38

Effectiveness of delegated legislation controls.

Scrutiny committee

Answer 38

Can be effective in alerting Parliament to SIs that may need reviewing
However, they can’t alter anything. They can only refer thing on and lengthens the process.

Question 39

Effectiveness of delegated legislation controls.

Judicial review

Answer 39

Judges can check if law has been made in the correct manner and if so can mark them as invalid
However, it is ineffective unless and individual brings an application to the court’s attention But this won’t happen without knowledge, time and money.