Delegated Legislation
Delegated legislation is a law made by a body or individual to whom Parliament has delegated law-making power.
We have delegated legislation because Parliament does not have the time or expertise to debate and consider every single small detail of the extremely complex regulations, because of this it is necessary for Parliament to give some of its power to other organisation and trusted individuals to make new laws. It is also a much faster process to make laws by delegated legislation than it is to make laws by going through the lengthy parliamentary law-making process.
Orders in Council
The monarch, currently the Queen, and the Privy Council are the only people authorised to make orders in council. The Privy Council consists of the prime minister and other leading member of the government, for example the home secretary. Orders in Council allow the government to make legislation without it having to go through parliament. One good example of is in 2004 when an order in Council was used to alter the Misuse of Drugs Act 1971 in order to make cannabis a class B drug. One example of an order in Council made in times of national emergency is the Afghanistan Order 2001 which was passed in an emergency situation when Parliament was not sitting, and is a result of the terrorist attacks on 11th September 2001.
Statutory Instruments
Statutory Instruments are regulations and rules made by ministers of the government. Government ministers are authorised to make regulations regarding areas of their particular responsibility. The use of statutory instruments is now a greater method of making laws, there is around 3,000 brought into force every year. One particular example of a statutory instrument would be Statutory Instrument 2695 of 2003 in which it was made illegal to “drive a motor vehicle on the road if he is using a hand-held mobile telephone”, this law was broken by Mrs. E. Porter as she was caught by police “using her mobile phone while driving”. This Statutory Instrument came into force on 1st December 2003, created and introduced by the Secretary of State, he was able to do so as he is a government minister and therefore was given the authority to make Statutory Instruments by Parliament. One example of how statutory instruments are used to update law is the regular increase in the national minimum wage under the National Minimum Wage Act 1998.
Bylaws
Bylaws are laws which can be made by local authorities for their specific local areas, this allows very specific or ‘Tailor-made’ for the specific purpose, for example the Harrogate Borough Council could introduce bylaws to cover matters regarding specific issues in Harrogate or Knaresborough while they cannot introduce bylaws to London city-centre as they do not have the authority to make bylaws outside of their district. Public corporations and certain companies involving members of the public may also make bylaws within their jurisdiction. This means that groups like the British airports authority and the railways can enforce rules regarding the behaviour of members of the public on their premises, for example of this is the fine for trespassing on railways. Local bylaws can often involve traffic control, such as parking restrictions and congestion charges. One specific example of a bylaw is in Kestley Town where a bylaw in 2001 banned drinking in public areas, Mr P. West was arrested for drinking in the local park as a result of this bylaw. One other specific example of a bylaw was in 2002 when it was made illegal to drink alcohol in public places in Manchester city centre at a particular time as the Common-wealth Games were hosted in Manchester.
Controls on Delegated Legislation
The different forms of delegated legislation; bylaws, statutory instruments and orders in council, allow bodies below parliament to pass their own legislation, however there are many critical reasons why it’s necessary to have control over delegated legislation. First of all, delegated legislation is made by elected representatives, meaning that they are individuals with the ability to pass delegated legislation which may result in absurd laws like involved in ‘Strickland v Hayes Borough Council (1986)’ where a bylaw was introduced which prohibited an indecent song which the court held invalid.
Parliamentary Controls
There is a number of ways in which Parliament can control bodies entrusted with the authority to make delegated legislation.
• One way in which Parliament can control orders in Council made by the Queen or the Privy Council is by repealing the Act delegated by them if it is not seen so be in the best interests of the general public by Parliament. This means that if thought appropriate, Parliament may effectively “undoing” the Act in question.
• Parliament may also request that the delegated legislation is “laid before Parliament” before it becomes law, this is also known as the special procedure order. Special procedure orders are normally for Parliament’s information and normally there will be 40 days over which Parliament may question the Minister and debate the proposed law, however MPs would not be able to vote for it. This is also known as negative resolution. Sometimes affirmative resolution is required from one or both Houses of Parliament for the enabling Act. One disadvantage to this method of controlling delegated legislation it may take longer for Parliament to highlight any issues. Realistically, it is greatly unlikely that the Government will not reach a majority as so many votes must be taken into account.
• Another way in which Parliament control delegated legislation is by assembling Scrutiny Committees. Scrutiny Committees review all delegated legislation and report their findings to both Houses of Parliament, the Lords and the Commons. In 1974 the Joint Committee on Statutory Instruments was founded with the duty to scrutinise all instruments laid before both Houses of Parliament.
• Parliament can also require that the delegated body, in the enabling Act, consult with, or send a draft instrument for approval from, experts both outside and within their departments. For example, legislation regarding the teaching profession may involve consultation with the National Union of Teachers.
Judicial Controls
Delegated bodies can be controlled through the process of judicial review (in the Divisional Court of the QBD). Even though the court cannot declare an Act of Parliament invalid, they are able to declare the exercise of delegated powers invalid under the ultra vires rule. The court has the power to declare that a public body, for example a charity, in exercising the law-making powers granted to it by the enabling Act, has acted ultra vires, that is, it has exceeded, abused or acted totally unreasonably.
The court is dependent on an individual seeking judicial review and bringing the matter before them in order to consider whether a piece of delegated legislation is ultra vires. The only people entitled to bring a judicial review action are those directly affected by the piece of delegated legislation in question.
There are two grounds upon which delegated legislation can be declared to have no legal effect and being unenforceable by the courts:
1. The procedural ground; the delegated legislation is invalid here since the Minister has failed to follow the procedure laid down in the enabling Act, for example he has not sent a draft instrument to and sought approval from a specified advisory body, for example, the R.A.C.
2. The substantive ground in this case the delegated body has made law which they are not authorised to make by the enabling Act, this is also known as excess of power, or if the delegated body has made law unintended by the Act (this is also known as the abuse of power), or if the delegated body has acted irrationally in the making of the legislation. If the delegated legislation is seen to be ultra vires, this means that it is void and ceases to exist. In this scenario, the body delegated with law making power must redraft the legislation if they believe it is required.
Delegated legislation may be controlled by the judiciary, a few examples of cases in which this has taken place are: Strickland V Hayes Borough Council (1896), Attorney-General V Fulham Cooperation (1921) and Aylesbury Mushroom case