Delegated Legislation

Types of delegated legislation
1. This is law made by some person or body, other than Parliament
  1. Parent /enabling Act creates the framework of the law and then delegates powers to others to make more detailed law in the area
2. Orders in council
  1. Includes the Queen and the Privy council
  2. Giving legal effect European Directives
  3. Transferring responsibility between Government departments
  4. Bringing Acts of Parliament into force
  5. The privy council has power to make law in emergency situations
3. Statutory Instruments
  1. Regulations or orders made by government ministers, they are often used to update law
  2. There are about 15 different departments in the government, each one deals with different areas of policy and can make rules and regulations for the area it deals with
4. By -laws
  1. Cover matters within their own area
  2. Include parking restrictions & banning drinking in parks
  3. They can be made by public corporations
Control of delegated legislation
1. Control is exercised by Parliament and by the courts
2. Enabling Act
  1. Controls what powers are delegated as the enabling Act sets out the limits within which any delegated legislation must be made
3. Delegated powers scrutiny committee
  1. Located in the HOL
  2. It considers whether the provisions of bills going through Parliament delegated legislative power inappropriatley
  3. Affirmative resolution
    1. A small number of statutory instruments will be subject to an affirmative resolution. The statutory instrument will not become law unless specifically approved by Parliament within a specified time, usually between 28 and 40 days
  4. Negative resolution
    1. Most other statutory instruments will be subject to a negative resolution, which means that the relevant statutory instrument will be law unless rejected by parliament within 40 days
  5. Joint Select Committee on Statutory Instruments (Scrutiny Committee)
  6. Affirmative resolution procedure
    1. Requires both Houses of Parliament to approve the order: even though the Minster has recommended this procedure Parliament can still require the super affirmative resolution procedure to be used
  7. Negative resolution procedure
    1. Where the Minster recommends that this procedure should be used, it will be used unless within 30 days one of the Houses of Parliament objects to this. If the negative resolution procedure is adopted, the delegated legislation will not become law until it has been laid before before Parliament for 40 days
  8. Super - affirmative resolution procedure
    1. Under the Minister must have regard to:
      1. Any representations
      2. Any resolution of either House of Parliament
      3. Any recommendations by committee of either House of Parliament who are asked to report on the draft order
Control by Courts
1. Delegated Legislation can be challenged in the courts on the ground that it is ulta vires.
  1. E.g R v Home Secretary, Ex parte Fire Brigades Union (1995)
  2. E.g Aylesbury Mushroom case (1972)
2. The court will presume that unless an enabling Act expressly allows it, there is no power to do any of the following
  1. Make unreasonable regulations
  2. Levy taxes
  3. Allow sub delegation
Advantages of Delegated Legislation
1. Saves time
2. The need for technical expertise
3. Allows consultations
4. Decisions can be made quickly
5. Can be changed quickly
Disadvantages of Delegated legislation
1. Undemocratic
2. Risk of sub delegation
3. Large volume
4. Lack of publicity
5. Difficult wording

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Delegated Legislation

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