what is delegated legislation?
law made by a person or body outside Parliament, but with the authority of
Parliament in an enabling Act.
what is an enabling act?
- creates the framework of the law and then delegates power to others to make more detailed law in that area
- otherwise known as a ‘parent act’
what are the 3 types of delegated legislation?
- orders in council
- statutory instruments
- bylaws
orders in council
The King and the Privy Council have the authority to make Orders in Council.
This type of delegated legislation effectively allows the government to make legislation without it having to be debated or voted on in Parliament. Orders in Council can be made on a wide range of matters, especially:
- Transferring responsibility between government departments; for example, when the Ministry of Justice was created, the powers of the previous Department of Constitutional Affairs and some of the powers of the Home Office were transferred to this new ministry.
- Bringing Acts (or parts of Acts) of Parliament into force.
- It also allows the goverment to make law in emergencies under the Civil Contingencies Act 2004 - e.g. Fuel crisis in September 2000. Gulf War and subsequent invasion of Iraq
- Amending/updating existing legislation - 2003 – altered Misuse of Drugs Act (1971) to make cannabis a Class C drug. 2008 – altered the act to make cannabis a Class B drug again
To create an Order in Council, the privy council MUST have permission from an enabling act. A good example of an enabling act is the Constitutional Reform Act (2005) which allows the privy council to alter the number of Supreme Court Justices in the Supreme Court
what are the four types of statutory instruments?
- Regulations
- Orders
- Codes of Practice
- Rules
statutory instruments
a piece of delegated legislation created by a government minister under the authority of an enabling Act
SI’s are one of the major methods of law making and approximately 3000 are created each year
They can cover one point or many, can be short or long e.g. Chemicals (Hazard Information and Packaging for Supply) Regulations 2009
To create a SI, they MUST have permission from an enabling act
examples of statutory instruments
- Building regulations 2010 – cover building regulations for new constructions (Enabling Act = Building Act 1984)
- Police Codes of Practice – cover arrest, stop and search, detention etc (Enabling Act = Police and Criminal Evidence Act 1984)
- Prison Rules 1999 – covers rules in Prison (Enabling Act = Prison Act 1952)
- Chemicals (Hazard Information and Packaging for Supply) Regulations 2009 – covers information on chemicals (Enabling Act = European Communities Act 1972
bylaws
These can be made by local authorities to cover matters within their own area.
Local Government Act (1972) gave Local Authorities wide powers to make bylaws.
Bylaws MUST be approved by the relevant government department
● Many local by-laws involve traffic control, such as parking restrictions.
● Other by-laws may be made for regulating behaviour such as banning drinking in public places or banning people from riding bicycles in a local park.
● By-laws can also be made by public corporations and certain companies for matters within their jurisdiction that involve the public. This means that bodies such as the British Airports Authority and railway companies can enforce rules about public behaviour on or about their premises. An example is the South West Trains Limited Railway Bylaws
reasons for delegated legislation - acronym
L – Local needs/issues
T – Technical issues
E – Emergencies
A – Amendment
C – Consultation
U – Update
P – Parliamentary time saved
Reasons for delegated legislation - Local needs/issues
Allows for local needs/issues to be met
- Parliament lacks the local knowledge to make laws in some areas e.g. parking, traffic etc
Reasons for delegated legislation - Technical issues
Deals with complex issues - Parliament lacks the technical expertise to make laws in some areas e.g. computer regulations. A good example of this is Chemicals (Hazard Information and Packaging for Supply) Regulations 2009
Reasons for delegated legislation - Emergencies
Allows a faster response - Delegated legislation can be quick in emergencies (orders in council) e.g. foot and mouth outbreak or the fuel crisis 2000 or times of war
Reasons for delegated legislation - Amendment
It is easier to amend delegated legislation that primary legislation
- Ministers can add technical detail after its enactment without passing a new act.
- To change an Act with primary legislation takes a long time as a new Act must be passed through the normal legislative process. It is therefore much easier to do this with delegated legislation
- Good example is changing Cannabis to Class C then back to B (2003 then 2008).
Reasons for delegated legislation - Consultation
It allows ministers to consult both before and after the delegated legislation has been made e.g. Police Codes of Practice – can consult with police officers and lawyers
Reasons for delegated legislation - Update
Allows primary legislation to be updated - It allows the law to remain up to date e.g. annual changes in the law such as the minimum wage
Reasons for delegated legislation - Parliamentary time saved
Delegation saves Parliamentary time. There is already a very tight schedule in Parliament. With an average of only 35 Acts passed each year, Parliament clearly doesn’t have the time to cover everything. By delegating to other bodies, laws can be made in a timely fashion
what are the two types of controls on delegated legislation?
- parliamentary
- court
name the parliamentary controls on DL
- enabling act
- publication
- affirmative resolutions
- negative resolutions
- super-affirmative resolutions
- scrutiny committees
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legislation24
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influences on parliament0
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law reform4
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delegated legislation19
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statutory interpretation36
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precedent17
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eu law0
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evaluation of the legislative process (12)9
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evaluation of influences on law making (12)1
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evaluation of precedent (12)8
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evaluation of delegated legislation (12)6
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evaluation of statutory interpretation (12)26
