delegated legislation

Question 1

the parent/ enabling act

Answer 1

• parliament doesn’t have time or expertise to make all laws, so they delegate their law making powers to other bodies and allow them to make the laws
• the authority to make ‘del leg’ is usually laid down in a ‘parent’ act of parliament called an enabling act
• enabling act creates a framework of the law and then delegates the power to others to make more detailed law in the area

Question 2

three types of delegated legislation

Answer 2

• orders in council
• statutory instruments
• bylaws

Question 3

orders in council

Answer 3

• king and privy council have the authority to make orders in council
• privy council is made up of the prime minister and other leading members of the government
• so this method basically allows the government to make laws without going through parliament
• often in emergency situations
• orders in council can be used in a wide range of situations:
  •transferring responsibility between government departments e.g. when Ministry of Justice was created the powers were transferred from the previous Department of constitutional affairs using orders in council
  •bring acts or parts of acts into force
  •giving legal effects to EU directives
  •making laws in times of national emergency when Parliament isn’t sitting under authority of the Civil Contingency Act 2004 or Emergency Powers Act 1920 used during fuel crisis in 2000 where energy act order was made and after 9/11
• they can also be used to amend or update existing law
• in 2003 an order in council was used to alter the misuse of drugs Act 1971 and make cannabis a class C drug, five years later another change upgraded the drug back to class B
• dissolve parliament before a general election

Question 4

statutory instruments

Answer 4

• ministers and government departments are given the authority to make regulations for areas under their responsibility,
• approximately 15 departments in the government and each ones as its own ministers and area of responsibility,
• each department makes regulations to deal with their area of responsibility, so the minister for Transport deals with all necessary road traffic regulations,
• statutory instruments can be very short, covering one small point, such as the annual change to minimum wage - Minimum wage act 1998,
• they can also be very long with lots of details that are too complex to include in an Act of Parliament,
  . e.g. health Act 2006 gave authority to the secretary of state for health to define enclosed premises for the smoking ban, was done with the smoke-free regulations 2006,
• statutory instruments are extremely important with over 3000 made every year,
• they can also be used as commencement orders to specify when Acts come into force,

Question 5

bylaws

Answer 5

• made by local authorities covering matters within their local area,
• a county council can make laws that cover the entire county whereas a district or town council can only make laws in their own district or town, e.g. Durham council control the whole county - Darlington council only control Darlington and must follow Durham county,
• many local bylaws include things like traffic control on streets, banning alcohol in town centres, banning ball games, dog fouling fines etc,
• bylaws can also be made by public corporations such as transport for London being able to make laws on the underground (banning smoking and drinking, fines for not having a ticket etc),
• to be effective must be approved by relevant minister,
• many bylaws made under Local Government Act 1972 for example local laws prohibiting drinking of alcohol on streets,
• bylaws concerning dog fouling are made under the clean neighbourhoods and environment act 2005,
• railway act allows railway companies to make regulations on their property,

Question 6

control of delegated legislation

Answer 6

• delegated leg is often made by non-elected bodies, so its important it is controlled in some way,
• control is exercised by the courts or parliament,

Question 7

control by parliament

Answer 7

• they can revoke del leg at any time,
• has initial control with the enabling Act which sets the parameters within which the del leg is to be made,
• e.g. the secretary of state for Health was permitted to raise the age for the sale of tobacco products from sixteen, but couldn’t raise it above eighteen,
• most statutory instruments must be laid before Parliament, there are two main methods:
  . affirmative/ positive resolution procedure,
  . negative resolution procedure,

Question 8

effectiveness of Parliamentary Controls

Answer 8

• sheer number of pieces of del leg mean not all of them can be properly looked at,
• its very difficult to remove once it’s come into force,
• it’s very technical and the people Scrutinising may not understand that law,
• the scrutiny committee can recommend changes but Parliament don’t have to listen,

Question 9

scrutiny committee

Answer 9

• joint committee on statutory instruments and review all SI’s,
• the committee will draw the attention of both Houses of Parliament to points that need further consideration,

Question 10

main grounds for referring a SI back to the Houses of Parliament

Answer 10

• it imposes a tax or charge,
• it appears to have gone beyond the powers of the enabling Act,
• unclear or defective in some way,
• unexpected use has not been made of the powers given,

Question 11

affirmative resolution procedure

Answer 11

• a small number of SI’s are subject to this procedure,
• SI will not become law unless specifically approved by Parliament,
• the SI must be approved by Parliament within a specified timeframe - usually 24-40 days,
• must be a debate and vote in both houses,
• if there is no vote in favor, the SI won’t become a law,
• this process is used for SI of significant importance such as legislation made under the Humans Right Act 1998,
• Parliament will put an instruction in the enabling Act, that the issue has to be debated and voted on before it becomes a law,
• the SI must be approved by both houses, either house can reject it,

Question 12

negative resolution procedure

Answer 12

• most SI’s follow this procedure,
• here the SI will be law unless rejected by Parliament within 40 days,
• if there are objections then the SI’s must be debated,
• if may be passed or rejected,