Delegated Legislation

Question 1

8c - Delegated Legislation

Answer 1

• Occurs when Parliament passes a parent/enabling act which authorised another person or body to make a particular law
• Laws made this way are known as secondary law but have the same effect as those made directly by parliament

Question 2

8c - Delegated Legislation - Examples

Answer 2

• Police and Criminal Evidence act 1984 (the parent act)
• Authorised the home secretary to make a statutory instrument regarding the tape recording of interviews of suspects at police stations
- Contained in the codes of practice which were created via statutory instruments

Question 3

Delegated Legislation- Bylaws

Answer 3

• Made by local authorities or large corporations
• Made to deal with matters that affect the local area
• E.g. Fines for dog fouling

Question 4

Delegated Legislation - Statutory Instruments

Answer 4

• Made by government ministers
- Relate to the minister’s area of responsibility
• Made to add detail to a piece of primary legislation that usually affects the whole country
• E.g. Road traffic act 1988

Question 5

Delegated Legislation - Orders in Council

Answer 5

• Made by the monarch and privy council
- Consists of PM and other leading members of government
• Made to provide a quick response, usually when Parliament isn’t sitting in an emergency situation
• E.g. Emergency powers act 1920

Question 6

8d - Control by Parliament

Answer 6

• Parliament can amend or repeal delegated legislation at any time
• The parent act itself is a form of control over delegated legislation as it will usually lay down strict requirements, limitations and procedures to be followed when making legislation

Question 7

8d - Control by Parliament - Resolution Procedures

Answer 7

• These are applicable to statutory instruments only

Question 8

8d - Control by Parliament - Affirmative Resolution

Answer 8

• Procedure requires some statutory instruments to be voted on by Parliament
• Essentially this procedure requires the statutory instrument to have the approval of both houses of Parliament

Question 9

8d - Control by Parliament - Negative Resolution

Answer 9

• Procedure means that most statutory instruments become law unless a debate is requested by a member of Parliament
• Parliamentary members have 40 days to object to the statutory instrument and request a debate

Question 10

8d - Control by Parliament - Super Affirmative Resolution

Answer 10

• 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 super affirmative resolution procedure
• These statutory instruments usually amend or repeal acts of Parliament
• E.g. legislative reform orders, localism orders, public bodies orders, regulatory reform orders, and remedial orders

Question 11

8d - Control by Parliament - Scrutiny Committees

Answer 11

• Government ministers are accountable and can be questioned by Parliament

Question 12

8d - Control by Parliament - Joint Select Scrutiny Committee

Answer 12

• Reviews all statutory instruments and brings to the attention of Parliament any points that need to be considered
• E.g. If a minister has gone beyond the powers set out in the enabling act

Question 13

8d - Control by Parliament - House of Lords Delegated Powers Scrutiny Procedure

Answer 13

• Considers whether the provisions of a bill (before the parent act is passed) are about to give inappropriate law-making powers to other bodies

Question 14

8e - Controls by Courts

Answer 14

• Delegated legislation can be challenged via judicial review in the courts under the doctrine of ultra vires
- This means that the delegated body has gone ‘beyond the power’ handed down to them in the enabling act
• Any delegated legislation which is declared ultra vires is void and ineffective
• In order to bring about any case for judicial review, a person must show ‘locus standi’
- They are directly affected by the legislation
• If they are seen to be no issue with the type of delegated legislation, it is declared to be infra vires

Question 15

8e - Control by Courts - Process

Answer 15

• Defined as challenging a decision of a public body in court
• It can only be used if there’s no other effective way of challenging that decision, such as an appeal
• The judge is reviewing the lawfulness of the decision made by the public body or function only
• It is concerned with whether the law has been correctly applied and ensuring that the right procedures have been followed
• A judicial review case must be brought within three months of decision being challenged
• Private bodies cannot be challenged via the judicial review process unless they take on a public function such as running a prison
• Judicial review cases are heard in the administrative court
- Usually King’s Bench Division or High Court

Question 16

8e - Control by Courts - Procedural Ultra Vires

Answer 16

• A public authority has not followed the specified procedures set out in the enabling act for creating delegated legislation

Aylesbury Mushroom Case 1972
• Minister of labour had to consult ‘any organisation appearing to him to be representative of substantial numbers of employers engaging in the activity concerned’
• Minister failed to consult the Mushroom Growers Association which represented 85% of all mushroom growers
- Meant the order establishing a training board was invalid as it was against mushroom growers but it was valid in relation to others affected, such as farmers, had consulted with NFU

Question 17

8e - Controls by Courts - Substantive Ultra Vires

Answer 17

• Goes beyond the powers granted by the enabling act

R v Home Secretary exp Fire Brigades Union 1995
• Home secretary made changes to criminal injuries compensation scheme
• Charges held to have gone beyond power given by Criminal justice act 1988

Question 18

8e - Controls by Courts - Unreasonable

Answer 18

• The rules are unjust. made in bad faith or are so perverse that no reasonable person should have made them

Strickland v Hayes Borough Council 1896
• Bylaw was passed prohibiting singing/reciting any obscene song/ballad and use of obscene language generally
• Ultra vires because it was too widely drawn that it covered acts in private as well as public

Question 19

8f - Need for delegated legislation

Answer 19

• To free up Parliamentary time
- Not enough time for Parliament to deal with creating legislation in detail
• To deal with legislation when Parliament is not sitting
- During the summer recess for example or in times of emergency
• To speed up the process of legislation
- Delegated legislation does not have to be timetabled and does not have to go through the full parliamentary process
• Experts with the appropriate technical knowledge can be used to refine the details of the legislation
• Local knowledge is used when making bylaws which is likely to be more appropriate than relying on instructions from ministers based in London
• I’m an emergency or when Parliament is not sitting legislation can be passed quickly
- This can be achieved by the use or orders in council
- E.g. An order in council was made during the fuel crisis in 2000 and enabled the movement of fuel throughout the country
- They were also used during covid 19
• Orders in council can be used to implement a European Union directive quickly when Parliament is not sitting
- The power to do this was given via the European Communities Act
• Delegated legislation gives the government powers to make changes to law without needing to push through a completely new act of Parliament
- Legislation can be kept up to date

Question 20

12c - Delegated Legislation - Advantages - Time Saving

Answer 20

• Quicker to pass and amend than an Act of Parliament
• Parliament’s business is controlled by the government
- Its procedure can be complicated and it does not sit all year

Question 21

12c - Delegated Legislation - Advantages - Policy Over Detail

Answer 21

• Better for Parliament to focus on wider issues of policy rather than detail
• For example, the Road Traffic Act 1988 made a general requirement for motorcycle helmets but detailed specifications were set out by separate regulations

Question 22

12c - Delegated Legislation - Advantages - Expertise

Answer 22

• It is better to initially involve and use technical expertise or local knowledge when making detailed laws for specific industries or local areas
• The law making system would lose public support if laws were introduced and then found to be unworkable due to failure to consult or lack of knowledge

Question 23

12c - Delegated Legislation - Advantages - Flexibility

Answer 23

• Delegated legislation can be easily amended or revoked without having to go back to Parliament
• An example is the annual updating of the amount of minimum wage each year

Question 24

12d - Delegated Legislation - Disadvantages - Democracy

Answer 24

• It takes law making away from the democratically elected
• Allows non elected people to make law
• Parliament’s control is farely limited

Question 25

12d - Delegated Legislation - Disadvantages - Sub-delegation

Answer 25

• Law making authority is handed down to another level
• Government ministers do not have the time or expertise to make delegated legislation themselves so rely on civil servants working in their departments

Question 26

12d - Delegated Legislation - Disadvantages - Difficult to discover present law

Answer 26

• Passed short notice with little to no debate
• Lack of publicity
• Made in private

Question 27

12d - Delegated Legislation - Disadvantages - Complexity

Answer 27

• Obscure wording can lead to difficulty understanding
• Requires judges to interpret meaning

Question 28

12e - Parliamentary Controls - Advantages - Negative Resolution

Answer 28

• Is quicker so more effective
• All laws come in within 40 days if not challenged
• Allows laws to develop quickly

Question 29

12e - Parliamentary Controls - Advantages - Affirmative Resolution

Answer 29

• Means they are checked more thoroughly
• Are more suitable as they have been vetted
• E.g. Police and Criminal Evidence act 1984
• More appropriate for potentially controversial issues

Question 30

12e - Parliamentary Controls - Advantages - Committees

Answer 30

• Check every law
• All issues have been highlighted
• Contents are brought to the attention of Parliament

Question 31

12e - Parliamentary Controls - Advantages - Courts

Answer 31

• Force laws to change through judicial review
• Can make unsuitable laws void and ineffective
• Resolve unchecked or unedited issues in laws

Question 32

12f - Parliamentary Controls - Disadvantages - Negative Resolution

Answer 32

• Majority of laws are passes his was but go unchecked
• More laws are passed this way than through affirmative resolution
• Are almost impossible to remove from law once passed

Question 33

12f - Parliamentary Controls - Disadvantages - Affirmative Resolution

Answer 33

• More time consuming for Parliament
• Defeats the purpose of delegated legislation
• Is meant to be more effective

Question 34

12f - Parliamentary Controls - Disadvantages - Committees

Answer 34

• Have no power to change laws
• Highlighted issues don’t have to be resolved
• Parliament can allow laws to pass without taking advice

Question 35

12f - Parliamentary Controls - Disadvantages - Courts

Answer 35

• Judicial review is expensive and can only be used if the issue has a direct effect on the person
• Limits the number of people who can challenge law
• Means that most laws, even with issues, cannot be challenged and changed

Question 36

Effectiveness of Parliamentary Controls

Answer 36

• Parliament has the ‘ultimate’ control through resolution or amendment of the parent act which is consistent with doctrine of parliamentary supremacy
• The sheer volume (3500-4000pa) of delegated legislation means the parliamentary powers are limited as there is little time for proper scrutiny
• Parliamentary controls are affected by the parameters set by the enabling act
- Parliament only delegates powers to bodies that are accountable to Parliament and places limitations on the powers delegated

Question 37

Effectiveness of Court Controls

Answer 37

• Judicial review is rarely funded by legal aid and relies on individuals having the money, will and tenacity to pursue the case
• Have little control as it relies on an individual starting the claim
• Claimants wishing to use judicial review must pass stringent legal requirements (locus standi and three month time limit) before bringing a case which can exclude some
• Many enabling acts five ministers very wide discretionary powers making it difficult for the court to reach a finding of ultra vires
• Courts can be reluctant to ‘stand up to government’ due to supremacy of Parliament and separation of powers doctrines although the new UK supreme court (where judicial review appeals could be heard) is adapting a more interventionist role consistent with a constitutional court