Delegated Legislation

Question 1

What is delegated legislation?

Answer 1

• it is law made by some person or body, other than parliament, but with the authority of parliament
• DL is established by a ‘parent act’ of parliament. This gives these bodies the right to issue DL
• there are three types of DL
  1. Order in council
  2. Statutory instrument
  3. By laws

Question 2

1. Order in council

Answer 2

• made by the king and the privy council. Effectively and in reality, giving the PM and other leading members of the government the power to make laws without going through parliament. E.g, making law in times of national emergency
• decisions made by the privy council
• dont have to go through parliament
• they cover:
  1. Transferring responsibility between departments
  2. Bringing acts of parliament into force
  3. Making EU directives legal
  4. Making law in times of national emergency or certain aspects of foreign affairs
  5. Can also update existing laws.

Question 3

2. Statutory instruments

Answer 3

• rules and regulations made by ministers under the authority of an enabling act. (the enabling act is simply the authority given to ministers to issue these declarations in the original act)
• e.g:
• building regulations 2010 (changes made under the European Union act 1972 and the building act 1984)
• police codes of practise, such as ‘stop and search’
• over 3000 statutory instruments issued each year

Question 4

By laws

Answer 4

• directives issued by local authorise
• can cover matters such as parking restrictions, drinking in public and so on

Question 5

How is delegated legislation controlled?

Answer 5

What can parliament do?
- checks on the enabling act. This is where the original act will set out what ministers can and cannot due if delegated legislation is required in the future. Parliament can revoke these powers at any time
- affirmative resolution. This means that statutory instrument must be either approved, annulled or withdrawn. It cannot be amended however
- negative resolution. This means that the statutory instrument will become law unless rejected by Parliament within 40 days
- super affirmative resolution. This is when delegated legislation is made under the legislative and regulatory reform act 2006. Parliament is given greater controls in this area as ministers are given very wide ranging powers
- questioning of government ministers
- scrutiny committees. They can only scrutinise the technicalities of statutory instruments, not policy. They can refer any matters arising back to Parliament, but cannot make any changes

Question 6

Control by the courts

Answer 6

• ultra vires - when the courts deem that DL has 1) gone beyond the power given to it in the enabling act. 2) the incorrect procedure was used and 3), a decision has been made unreasonably
• r v Home Secretary, ex parte fire brigades union