Delegated legislation Topic 2 Delegated legislation

Types of delegated legislation There are three main types of delegated legislation: bylaws statutory instruments Orders in Council

Introduction to delegated legislation Parliament does not have the time or the expertise to pass every law that is required each year. It is therefore necessary for it to give some of its power to other people and organisations to make laws. Parliament gives this power in an enabling Act.

Bylaws Bylaws are made by local councils and other public bodies. For example, a local council might wish to ban drinking in its town centre. Another example would be the fines incurred by people who let their dogs foul in public parks. Public corporations, such as the bus and train services, are able to impose fines for non-payment of fares.

Statutory instruments Statutory instruments are regulations made by government departments to implement the provisions made in Acts of Parliament. For example, the Department of Constitutional Affairs can make changes to the provision of legal aid under the Legal Aid Act 1998.

Orders in Council Orders in Council are laws passed by the Privy Council, which is a group of senior politicians who are allowed to make law without the need for the whole of Parliament to be sitting. The Privy Council has the power to pass laws in times of emergency with the permission of the queen under the Emergency Powers Act 1920. It may do this in wartime.

Controls on delegated legislation general supervision of delegated legislation parliamentary supervision of delegated legislation court supervision of delegated legislation

General supervision Enabling Act: the enabling Act sets out the powers that Parliament wishes to delegate. Consultation: the enabling Act may specify that certain organisations or experts must be consulted before delegated legislation is made. Publication: all delegated legislation is published and made available for interested parties to read.

Parliamentary supervision All bylaws are checked by the relevant government minister. All statutory instruments are scrutinised by a group of MPs known as a select committee. Affirmative resolution procedure -requires some statutory instruments to be voted on by Parliament. Negative resolution procedure - means that most statutory instruments become law unless a debate is requested by a Member of Parliament (MP). Question time - Government Ministers are accountable and can be questioned by Parliament

Court supervision Judicial review Under judicial review, an organisation or member of the public may challenge a piece of delegated legislation in the High Court. The judge will interpret the wording of the enabling Act to decide whether the law was made ultra vires (beyond the powers granted by Parliament). If the legislation is found to be ultra vires, it will be declared void.

Judicial review Substantive ultra vires: delegated legislation will be declared void if it allows something that the enabling Act did not intend, e.g. Commissioners of Customs and Excise v Cure and Deeley (1962), or if the law made under the enabling Act is ‘unreasonable’ (‘Wednesbury unreasonableness’). Procedural ultra vires: the enabling Act may set out certain procedures that must be followed before delegated legislation can be passed, e.g. Agricultural, Horticultural and Foresty Training Board v Aylesbury Mushrooms Ltd (1972).

Advantages of delegated legislation It saves time. Parliament is only able to pass about 50 Acts of Parliament per year. It is therefore vital for it to delegate power to make the thousands of other necessary laws. It is flexible. Delegated laws can be passed more quickly if they are not required to go through the official legislation process. It is made by experts.

Disadvantages of delegated legislation It is undemocratic because it is made by unelected people rather than by Parliament. The sheer quantity of delegated laws made each year makes it difficult for the public to be informed of all the changes to the law. Although there are controls and checks for delegated legislation, the large quantity makes it difficult for proper scrutiny to occur.