Chapter 3 - Delegated Legislation

Chapter 3 - Delegated Legislation
LawStudies
What is Delegated Legislation

Law made by somebody other than the Parliament, but with
the authority of the Parliament.
What types of Delegated

Legislation are there?
Orders in Council
What are they and what do they do?
These are Laws made by the Monarch and their Privy Council
under emergency (right granted by the Civil Contingencies Act
2004)
or when the Parliament is not currently sitting
or when it would be impractical to pass a full Act of
Parliament.
What is the Privy Council?

The Privy Council is a formal body of advisers to the
Monarch, including senior politicians who are current or
former members of the house of commons or house of lords
Examples of what it can do?
It can transfer responsibilities between government
department
It can alter law, for example orders in council was used in
2003 to alter the Misuse of Drugs Act 1971, to downgrade
cannabis to a class C drug from a class B drug
Statutory Instruments
What are they?
laws made by ministers of the crown
these laws can be short, covering only one point, such as
making a change to minimum wage.
however, they can also be long, with detailed regulations that
are too complex to include in An Act of Parliament, whereby if
they were included then the Act would be far too long and
complicated to navigate.
This is why they do not require an Act of Parliament, and go
through their own procedure of publication.
Example
Minister for Transport can make road traffic regulations.
Bylaws
What are they?
Laws made by local authorities or organizations which deals
with matters concerning their own area.
Examples of Bylaws
District Town Council can make bylaws for its own district or
town.
Bylaws can also be made by public corporations and certain
companies, for matters within their power that involve the
public.
For example, the British Airports Authority can enforce rules
about public behavior on or around their premises.
What is the Legislative and

Regulatory Reform Act 2006?
Allows ministers to use statutory instruments to amend
existing legislation, if it will reduce a burden, directly or
indirectly, resulting from a legislation
How is a burden defined?

If it creates a financial cost
if it creates an obstacle to efficiency, productivity or
profitability
if it creates an administrative inconvenience
How does a minister use the powers

under this Act?
In order for a minister to use the powers under this Act, they
must consult various people and organizations first.
They must consult, for example, an organization because
they need to understand how their proposal will affect them or
their interests.
An example would be, if a minister were to make a proposal
affecting business in general, they should first consult with the
Confederation of British Industry, which is an organization
which promotes and protect business interest
If a minister were to make a proposal affecting Wales, then
they should consult the Welsh Parliament.
After consulting with the appropriate people, the proposal
made under this act must be laid before Parliament to be
considered
What are the Parliamentary

controls on delegated legislation?
enabling act sets boundaries on what legislation the delegate
may make, and wether it will affect the entire country or only
certain places
also, the parliament may repeal the powers in the enabling
act at any time
the enabling act may, for example, state which government
minister can make the regulations
Delegated Powers Scrutiny Committee

In the House of Lords
Considers wether the provisions of any of the Bills give too
much legislative power
Has no power to amend bills though, just report it
however, this body is important because if the powers given
are appropriate then it is likely the delegated legislation will be
proper
Scrutiny Committee
committee that reviews all statutory instruments
if necessary, will draw the attention of both houses of
Parliament to points that need further consideration
What are the main grounds for referring the

statutory instrument back to the Houses of
Parliament?
imposes a tax or charge - this is because only an elected
body has such a right
appears to have an effect that was not allowed by the
enabling act
appears to have breached the powers granted by the
enabling act
is unclear or defective in some way
Affirmative Resolutions
whereby a statutory instrument will not become law unless
specifically approved by Parliament; it will have to be debated
in Parliament before it can pass
Only a small number of statutory instruments are subject to
affirmative resolution
the need for an affirmative resolution is also included in the
enabling act for some laws; for example an affirmative
resolution is required before an amendment is made on
Criminal Evidence Act 1984
Disadvantage of affirmative resolutions are that Parliament
cannot amend the statutory instruments
Negative Resolutions
whereby a statutory instrument will be law unless rejected by
parliament within 40 days
where most statutory instruments fall under
Questioning
Ministers responsible for statutory instruments may be
questioned by MPs in Parliament on the work of their
department; could include questions about proposed
regulations
Court Controls on Delegated

Legislation
Delegated Legislation may be challenged in court on the
grounds that it is "Ultra Vires" (beyond powers)
Judicial review and locus standi

any action to challenge delegated legislation will take place in
queen's bench division of the high court
this is a problem because the queen bench division has
limited cpacity
can only be challenged by a person with locus standi or an
interest in the proceedings, such as someone affected by a
decision
If any delegated legislation is ruled to be ultra vires, then it is
void and not effective
There are times of ultra vires: procedural and substantive,
and there is also unreasonableness.
Procedural ultra vires

concerned with how the delegated legislation is made and if
the required procedures have been followed
any piece of legislation made without following correct
procedure will be ultra vires and void
Substantive Ultra vires

concerned with wether the content of the delegated legislation
is within the limits specified in the parent act.
any delegated legislation made beyond those limits will be
ultra vires and void.
Advantages of Delegated
Legislation
Time-saving
allows the MPs to focus on wides issues rather than detail
delegated legislation allows for a quick response in an
emergency when parliament might not be sitting
delegated legislation is made by experts
delegated legislation can be easily amended or revoked
there is great control from the court and parliament
Disadvantages of Delegated
Legislation
takes law-making away from democratically elected House of
Commons and allows non-elected people to make law
there is a large volume of delegated legislation every year,
which makes it difficult to understand what the present law
since delegated legislation generally does not go in as great a
process of scrutiny as process in parliament, the wording can
sometimes be bad or misleading, leading to a harder time
interpreting the law

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Chapter 3 - Delegated Legislation

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Chapter 3 - Delegated Legislation

What is Delegated Legislation

What types of Delegated

What is the Privy Council?

What is the Legislative and

How is a burden defined?

How does a minister use the powers

What are the Parliamentary

Delegated Powers Scrutiny Committee

What are the main grounds for referring the

Court Controls on Delegated

Judicial review and locus standi

Procedural ultra vires

Substantive Ultra vires

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