Delegated legislation

Question 1

Delegated legislation

Answer 1

Delegated legislation is law made by some person or body other than Parliament, but with the authority of Parliament. There will be usually a Parent Act, formally known as an enabling Act, which creates the framework of law and then delegates power to others to make more detailed law in the area. The enabling act is a statute empowering a person or body to take certain action, especially to make regulations, rules or orders.

E.g. Police and Criminal Evidence Act 1984, and Criminal Justice Act 2003

Police and Criminal Evidence Act 1984 – gives powers to make Codes of Practice for theuse of police powers
Criminal Justice Act 2003 – gives the Secretary of State the power to make delegated legislation in several areas

Question 2

Statutory instruments(Ministers of the
Crown)

Answer 2

Statutory instruments (regulations, rules and orders). The procedure for introducing a statutory instrument is usually laid down partly in the enabling (parent) Act and partly in the Statutory Instruments Act 1946. The use of statutory instruments is widespread. In 2003, Parliament passed 45 Acts; almost 3,500 statutory instruments were made in the same period.
1.Regulations. These are used to make substantive law
2.Orders. These are usually made by Government Ministers and serve a narrow purpose,
such as commencement orders (stating when a statutory provision will come into force)
and legislative reform orders.
Rules. These are procedural rules which lay down how things should be done, rather
than what should be done, such as the Civil Procedure Rules

Question 3

Bye-laws

Answer 3

Bye-laws are made by local authorities, public and nationalised bodies and deal with matters
within their limited jurisdiction. Bye-laws have to be approved by central Government.

Question 4

Orders in Council

Answer 4

Orders in Council are approved by the Privy Council and signed by the Queen. They are used when an ordinary statutory instrument made by a Minister would be inappropriate, such as in times of emergency or where the order involves the transfer of ministerial
power.

Question 5

Control of delegated legislation

Answer 5

Because it is not directly made by elected representatives, delegated legislation is subject to
the following range of controls, designed to ensure that the power delegated is not abused.

Question 6

Consultation

Answer 6

Those who make delegated legislation often consult experts within the relevant field, and those bodies which are likely to be affected by it. In the case of road traffic regulations, for example, Ministers are likely to seek the advice of police, motoring organisations, vehicle manufacturers and local authorities before making the rules. Often the relevant statute makes such consultation obligatory and names the bodies which should be consulted.Under the National Insurance Act 1946, for example, draft regulations must be submitted to the National Insurance Advisory Committee.

Question 7

Publication

Answer 7

All delegated legislation is published, and therefore available for public scrutiny. Alongside the statutory instrument, the Government now publishes an explanatory memorandum detailing the statutory instrument’s policy objective and legislative context. The importance of publishing legislation was emphasised in a European case in 2009. A man had been prevented from getting on a plane with a tennis racket as hand luggage. The airline had pointed to some European regulations that prohibited certain articles from being taken on board the plane for security reasons. The relevant items were listed in an
appendix which had been published but when the appendix was amended the amended version was not published. The passenger claimed that the amended regulations could not be enforced against him because they had never been published. This argument
was accepted by the court because governments should not be allowed to pass secret
legislation; the public should be able to ascertain the scope of their rights and obligations under the law.

Question 8

Supervision by Parliament

Answer 8

There are a number of ways in which Parliament can oversee delegated legislation.

Question 9

Revocation

Answer 9

Parliamentary sovereignty means that Parliament can at any time revoke a piece of delegated legislation itself, or pass legislation on the same subject as the delegated legislation.

Question 10

The negative resolution procedure

Answer 10

Much delegated legislation is put before Parliament for MPs under the negative resolution procedure. Within a specified time (usually 40 days), any member may put down a motion to annul it. An annulment motion put down by a backbencher is not guaranteed
to be dealt with, but one put down by the Official Opposition (the party with the second
largest number of MPs) usually will be. If, after debate, either House passes an annulment motion, the delegated legislation is cancelled.

Question 11

Affirmative procedure

Answer 11

Affirmative procedure is a type of parliamentary procedure that applies to statutory instruments (SIs). Its name describes the form of scrutiny that the SI receives from Parliament. An SI laid under the affirmative procedure must be actively approved by both Houses of Parliament. Certain SIs on financial matters are only considered by the Commons.

Question 12

Super-affirmative procedure

Answer 12

The super-affirmative procedure involves an additional stage of scrutiny where Parliament considers a proposal for a statutory instrument before the statutory instrument is formally presented (‘laid’). This procedure is used for statutory instruments that are considered to need a particularly high level of scrutiny.
There are some specialised categories of statutory instrument that are used for particular purposes that are, or can be, considered under the super-affirmative procedure. These statutory instruments usually amend or repeal Acts of Parliament. Examples include legislative reform orders, localism orders, public bodies orders, regulatory reform orders, and remedial orders.
Under the super-affirmative procedure, a minister presents a proposal for a statutory instrument and an explanatory statement. Committees in the House of Commons and the House of Lords consider the proposal and can make recommendations. Then the minister can formally present (‘lay’) a draft of the statutory instrument under the affirmative procedure.

Question 13

Committee supervision

Answer 13

Several parliamentary committees monitor new delegated legislation. The Joint Committee on Statutory Instruments watches over the making of delegated legislation and reports to each House on any delegated legislation which requires special consideration,
including any regulations made under an Act that prohibit challenge by the courts, or
which seem to make unusual or unexpected use of the powers granted by the enabling
Act. However, the Committee may not consider the merits of any piece of delegated legislation.

Question 14

Questions from MPs

Answer 14

MPs can ask Ministers questions about delegated legislation at a ministerial question time,
or raise them in debates.

Question 15

Control by the courts: judicial review

Answer 15

While the validity of a statute can never be challenged by the courts because of parliamentary sovereignty, delegated legislation can. It may be challenged on any of the following grounds under the procedure for judicial review.

Question 16

Procedural ultra vires

Answer 16

Here the complainant claims that the procedures laid down in the enabling Act for producing delegated legislation have not been followed. In Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd (1972), an order was
declared invalid because the requirement to consult with interested parties before making it had not been properly complied with.

Question 17

Substantive ultra vires

Answer 17

This is usually based on a claim that the measure under review goes beyond the powers Parliament granted under the enabling Act. In Customs and Excise Commissioners v Cure & Deeley Ltd (1962) & R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants (1996)

Question 18

Unreasonableness

Answer 18

If rules are manifestly unjust, have been made in bad faith (for example, by someone with a financial interest in their operation) or are otherwise so perverse that no reasonable official could have made them, the courts can declare them invalid.

Question 19

ADVANTAGES OF DELEGATED LEGISLATION

Answer 19

1 Save parliamentary time (Speed)

2 Access to particular expertise when it comes to making laws on technical matters

3 ordinance, when no members of the Parliament will meet up to make new law

4 Flexibility Statutes require cumbersome procedures for enactment, and can only be revoked or amended by another statute. Delegated legislation, however, can be put into action quickly, and easily revoked if it proves problematic.

Question 20

DISADVANTAGES OF DELEGATED LEGISLATION

Answer 20

1.Not democratic and no publicity – no formal limit to the delegation of legislative powers
2 Some power might be misused for taxing
3 Goes against the doctrine of separation of powers
4 Dangers of sub-delegation: when powers given to the person are passed on to another to make law, control by Parliament becomes difficult
5 Retrospective legislation: Henry VIII clauses has a provision disallowing courts to review delegated legislation, and that primary legislation can be amended or repealed by secondary legislation.