Delegated Legislation

Question 1

Need for delegated legislation

Answer 1

TIME
- parliament does not have enough time to discuss the finer points of every statute - they have to deal with many other issues
SPEED
- can be passed at speed - doesn’t need to follow the drawn out process of an Act of Parliament
EMERGENCIES
- this allows them to deal directly with emergency situations
- Emergency Powers Act 1920
CONSULTATION
- allows for the consultation of experts and can utilise local knowledge
FLEXIBILITY
- easier to amend then an Act of Parliament and therefore allows greater flexibility

Question 2

Types of delegated legislation

Answer 2

1. Statutory instruments
2. Orders in council
3. Bylaws

Question 3

Statutory interpretation

Answer 3

INTRODUCED BY
- government ministers
- from 15 government departments
- Codes of Practice under PACE
POWER FROM
- an enabling act
METHOD OF INTRODUCTION
- affirmative resolution - MP’s must vote on the act
- negative resolution - MP’s have 40 days in which to reject the act
- super affirmative resolution - for acts introduced under the LRRA 2006
USE
- over 3,000 brought into force every year

Question 4

Orders in council

Answer 4

INTRODUCED BY
- queen and privy council
- the export and movement restrictions 2007
POWER FROM
- times of emergency
- when parliament is not sitting and in times of war
- emergency powers act 1920
MAIN USE
- to give power to European directives and regulations
- European communities act 1972

Question 5

Bylaws

Answer 5

INTRODUCED BY
- local authorities 
- local parking regulations
- public corporations 
- smoking ban London Underground 
POWER FROM
- enabling act
USE
- to exploit local knowledge or technical expertise

Question 6

Controls of delegated legislation

Answer 6

1. Enabling act
2. Scrutiny committee
3. Resolutions
4. Judicial review
5. Substantive ultra vires
6. Procedural ultra vires

Question 7

Control - enabling act

Answer 7

• sets restrictions on the power delegated
• allows parliament to revoke or amend legislation at any time
• allows parliament to withdraw delegated power

Question 8

Control - scrutiny committee

Answer 8

• look at all statutory instruments

- can send back to government department and can suggest changes but cannot enforce changes

Question 9

Control - resolutions

Answer 9

• affirmative resolution - MP’s must vote on the act
• negative resolution - MP’s have 40 days in which to reject the act
• super affirmative resolution - for acts introduced under the LRRA 2006

Question 10

Control - judicial review

Answer 10

• an application for judicial review can be made if it is believed that the government minister involved in making statutory instrument has gone beyond the powers given

Question 11

Control - substantive ultra vires

Answer 11

• going beyond the powers given by trying to enforce unreasonable law
• Strictland v Hayes Borough Council

Question 12

Control - procedures ultra vires

Answer 12

• going beyond the powers given by not following the correct procedure
• Aylesbury Mushrooms

Question 13

Effectiveness of delegated legislation

Answer 13

PARLIAMENT
- parliamentary controls are affected by the parameters set within the enabling act
- however, it is parliament that passes the enabling act so is up to them how much power they grant
AFFIRMATIVE RESOLUTION
- allows parliament to approve, annul or withdraw
- but does not allow parliament to amend
SCRUTINY COMMITTEE
- can refer back to parliament on technical issues
- but cannot alter the statutory instrument
JUDICIAL REVIEW
- relies on an individual starting a claim and this can be affected by lack of knowledge or financial restrictions
- as well as this, the potential for successful ultra vires claim is unlikely due to breadth of most enabling acts

Question 14

Disadvantages of delegated legislation

Answer 14

UNDEMOCRATIC
- delegating the power to make legislation away from them parliament means unelected individuals are making law - which is undemocratic
- however, it is simply not possible for parliament to make all of the legislation they need to - they do not have enough time
AWARENESS
- there is a lack of publicity surrounding delegated legislation and there is a lack of scrutiny of it
- this means the public find it difficult to apply for judicial review and essentially rules out one of the controls of delegated legislation
AMOUNT
- there is a lot of delegated legislation - over 3,000 statutory instruments a year alone
- this means there is a risk of further sub-delegation which makes the process even more undemocratic