Delegated Legislation

Question 1

What is Delegated Legislation?

Answer 1

A secondary (subordinate) legislation and is law made by something other than parliament but with the authority of parliament

Question 2

How is the authority to make DL often granted?

Answer 2

Through the use of Parent/Enabling Acts

Question 3

Reasons for DL:

Answer 3

Saves time
Deals with complex issues
Quick to amend/flexibility
Allows a fast legislative response
It allows for local needs and concerns to be met

Question 4

What is a Parent/Enabling Act?

Answer 4

This allows a non-parliament body to hold the power to make law as parliament does. This act sets out the mere framework of the law and then delegates power to other to make more detailed law in that area

Question 5

What are the 3 types of DL?

Answer 5

Bylaws
Orders in Council
Statutory Instruments

Question 6

Bylaws

Answer 6

These are made by local authorities who are granted the power by the Local Government Act/ Acts of Parliament. Bylaws have a local affect unless made by a railway, for example, in which case it applies on their premises. An example could be the Local government Act [1972] which allows local authorities to make their own rules on certain issues in that area.

Question 7

Orders in Council

Answer 7

These are made by the Monarch and the Privy Council due to the Monarch’s constitutional powers. The affect these acts have is often national but it can depend on the nature of the act. An example of this could be the Civil Contingency Act [2004]

Question 8

Statutory Instruments

Answer 8

These are made by Government Ministers who are given the authority to make regulations areas of their particular responsibility. These have a national affect. An example of this could be the Dangerous Dogs Order [2023]

Question 9

Advantages of DL:

Answer 9

Saves limited time in Parliament
Allows rapid change
MP’s lack detailed technical knowledge
Quick responses to new developments
Enables minor changes to statutes
Judicial review may be sought by parties with Locus Standi (Person sufficiently affected by the legislation) so time isn’t wasted by Parliament considering them all

Question 10

Disadvantages of DL:

Answer 10

Implies that Parliament has insufficient time to scrutinise it. Parliament is not reviewing legislation properly
Sub-delegation of powers is a further problem which causes complexity and confusion
Sheer Volume causes complexity
Lack of Publicity
It is undemocratic as most regulations are made by a civil servant or other unelected people.

Question 11

Who do the controls on DL fall to?

Answer 11

Parliament
Courts

Question 12

Controls by Parliament

Answer 12

This is done BEFORE the law is in place and comes in the following forms:
The parent/enabling act
Negative resolution procedure
Affirmative resolution procedure
Scrutiny Committees

Question 13

What is a Negative resolution Order?

Answer 13

The SI is put before parliament and it must stay there for 40 days with no objection to become law

Question 14

What is an Affirmative resolution Order?

Answer 14

Parliament is required to vote on the DL put before them on a given date

Question 15

What are Scrutiny Committees?

Answer 15

The Joint Select Committee on Statutory Instruments (JSCSI) - scrutinises the Delegated Legislation
The House of Lords Delegated Powers Scrutiny Committee (HoLDPSC) - scrutinises the parent act

Question 16

Court/Judicial Controls

Answer 16

These are used once the DL is in force. This is performed by the Administrative Court which a part of the King’s Bench Division of the High Courts

Question 17

What does Ultra Vires mean?

Answer 17

Beyond the Powers

Question 18

What are the 4 main Judicial Controls?

Answer 18

Procedural Ultra Vires
Substantive Ultra Vires
Substantive Ultra Vires for unreasonableness
Inconsistency with the Human Rights Act [1998]

Question 19

Procedural Ultra Vires

Answer 19

A piece of DL may be declared invalid if the correct procedure was not followed
Agricultural Training Board v Aylesbury Mushrooms [1972] - This minister did not consult the mushroom grower’s association who were a relevant body in this matter

Question 20

Substantive Ultra Vires

Answer 20

The person making the DL exceeded the power of the court
R v Secretary State for Health, ex parte Pfizer Ltd [1999] - Pfizer believed the SoSH’s circular was unlawful

Question 21

Substantive Ultra Vires for unreasonableness

Answer 21

Where the regualtions made are unreasonable
Strickland v Hayes - Worcesteshire CC made it illegal to sing or say any profane language in public

Question 22

Inconsistency with the Human Rights Act [1998]

Answer 22

Simply when the DL is not consistent with the HRA [1998]
R (Bono) v Harlow DC [2002] - Claimant suggested that the proper regulations were not met and therefore his rights under the act were breached