Delegated Legislation

What is Delegated Legislation and how it is authorized?

·         Delegated Legislation is law made by a person or body to whom Parliament has delegated law-making power; hence the term ‘delegated legislation’.

·         New laws often need to complete more detailed rules. Parliament does not have enough time or expertise to make all these more detailed laws.

·         The reasons for detailed new laws may be because:

-          A new law may be required for a specific area of the country, for which case specialist local knowledge may be required.

-          Alternately, a new law on a technical matter such as health or agriculture will require specialist technical knowledge.

-          Sometimes, an emergency or a new situation may require new law to be made very quickly. Parliament often does not possess the necessary specialist local or technical knowledge to make laws quickly. Also the formal legislative process requiring readings in both Houses of Parliament, is not suitable where there is an emergency.

·         For these reasons it is necessary for parliament to delegate law making power to people and bodies who are better equipped to make the necessary detailed legal reforms.


Parent (or enabling Act)

·         By this piece of primary legislation, parliament gives authority to others to make law.

·         The parent act will enable further laws to be made under this authority.

·         The enabling Act contains the outline framework of the new law.

·         Within the Act there will be authority for specific person (such as a Government Minister) or body (such as a local authority) to make further more detailed laws.

·         This Act will specify the area within which law can be made any procedures that the delegated person or body must follow when making the delegated laws.

·         Law making power is only given to person or body best equipped with the knowledge and resources to make the type of law required.

·         If power is given to local authority then these persons will have the required knowledge.

·         If power is given to another body, such as a train or bus company, it will be given to make laws in respect of their property, (e.g. the enforcement for payment of fares).


Orders in Council

·         Orders in council are laws made by the Queen and Privy Council which are enforceable in Courts.

·         The Privy Council is a body made up of senior current and former politicians, senior judges and members of the Royal Family.

·         There are currently 420 members of the Privy Council; however only three or four current Government Ministers attend meetings at which Orders in Council are made.

·         Appointment is made by the Queen on the advice of the Government and is for life.

·         Orders in Council are used in many situations, including:

-          Transferring responsibility between Government departments or from Westminster departments to Scottish Parliaments and the Welsh assembly; this was done by the Scotland Act 1998 Order 1999 and the National Assembly of Wales Order 1999.

-          Dissolving parliament before an election.

-          Bringing in Act of Parliament into force.

-          Compliance with EU Directives, for example the Consumer Protection Act 1987 Order 2000.

-          Dealing with foreign affairs, for example, the Afghanistan (united Nations Sanctions) Order 2001, which makes it an offence to make funds available to Osama Bin Laden or the Taliban or any person or body connected with Osama Bin Laden or the Taliban.

-          In times of national emergency, when Parliament is not sitting. An example of an emergency situation is which an order in council was made, is as a result of the terrorist attacks on 11th September 2001 where there Afghanistan Order 2001 was passed.


Statutory Instruments

·         Statutory Instruments are law made by Government Ministers within the area of their responsibility.

·         They are enforceable in courts.

·         They can only act under the authority outlined by a Parent/Enabling Act.

·         Statutory Instruments are drafted by the legal department of the relevant Government department.

·         Statutory Instruments are often used to update law. E.g. the regular increase in the amount of the national minimum wage under the National Minimum Wage Act 1998.

·         Sometimes wider powers are given to the Government Minister to fill in the necessary details which are too complex to be incorporated into the Act.

·         Statutory Instruments are often referred to as ‘Regulations’ or ‘Orders’.

·         Statutory Instruments are often made in the form of Commencement Orders. These are orders made by a Government Minister specifying when an act or part of an act must come into force.

·         Sometimes there may be several Commencement Orders made in respect of the same Act, i.e. the Town and Country Planning Act 1971 was brought into force by 75 Orders.

·         There is no time limit within which Commencement order must be made after the Act has been passed. This means that some Acts are never actually brought into force, e.g. the Easter Act 1928 which specifies a fixed date for Easter, but the Act has never been brought into force.

·         Law that is made to comply with EU directives is often made in Statutory Instruments. E.g. the Unfair Terms in Consumer Contracts Regulations 1999 were made in order to comply with the Unfair Terms in Consumer Contract Directive 1993.

·         Approximately 3000 SIs are issued each year, making up the bulk of delegated legislation.

·         About two-thirds of SIs are not actively considered before Parliament and simply become law on a specified date in the future.


By Laws

·         By-laws are made by local authorities and public corporations or companies.

·         They must be approved by the relevant Government Ministers before they are enforceable in the Courts.

·         Local authorities can make laws which apply just within their geographical area. A Country Council can pass laws affecting a whole country, while a City, Town or District Council may pass laws affecting that city, town or district.

·         These laws may deal with issues, for example drinking alcohol in public places or the fouling of public areas by dogs.

·         A parent Act in respect of dog fouling is the Dogs (Fouling of Land) Act 1996. Under this Act a local authority can designate areas of land as poop scoop areas. This means dogs that foul in designated areas and do no clean it up; their owners will be a subject to a fixed penalty of £50.

·         Many by-laws are made under the authority of the Local Government Act 1972.

·         Areas have signs on lampposts to support the prohibition.

·         Pubic bodies and some companies can make laws regulating the behavior of the public while on their property, i.e. the Transport Act 1993 where it was made illegal to smoke on trains. (Boddington v British Transport Police (1998).


Control of Delegated Legislation


Parliamentary Control

·         Limits Delegated Legislation through the Parent/Enabling Act.

·         Only the people or body specified in the parent act have power to make law, and extend of that power is also specified.

·         The parent act will set out how the delegated legislation must be made and may set out certain procedures, such as consultation, to be followed.

·         Parliament Supremacy is not compromised as Parliament ultimately remains in control of what law is made and how it is made.

·         Parliament may repeal or amend the piece of delegated legislation, this allows parliament to make or unmake laws.

·         The effectiveness of this control is limited because, due to volume of delegated legislation made each year, Parliament will not be able to check it all.

·         Joint Select Committee on Statutory Instruments, also known as the Scrutiny Committee which is made up of MPs and Peers check the Statutory Instruments and refer back to the Houses of Parliament.

·         Main grounds for referring a Sis back to House of Parliament are because:

-          It appears to have gone beyond or outside the powers given under the Parent/Enabling Act.

-          It has not been made according to the method written in the Parent Act.

-          Unexpected use has been made of the delegated power.

-          If it unclear or defective.

-          If it imposes a tax or charge – only parliament has the right to do this.

-          If it is retrospective in its effects, and the Parent/Enabling Act did not allow for this.

·         This is more effective control as many Statutory Instruments are subject to some scrutiny.

·         However impossible to look at all as over 3000 are created each year.

·         Scrutiny committees are limited in that it has no power to amend the Statutory Instruments, merely to report its finding back to the House of Commons or Lords.

·         However, research by the Hansard Society, reported in 1992, revealed many findings of the Scrutiny Committee were ignored.

·         The House of Lords’ Delegated Power Scrutiny Committee (set up in 1993) considers whether the provisions of Bills give inappropriate delegated legislative power. It reports to the House of Lords before the Committee stage on the Bill.


Affirmative Resolution Procedure

·         Statutory Instruments must be approved by one or both Houses of Parliament within a specified time, usually between 28 and 40 days, before it can become law.

·         Disadvantages:

-          Time consuming – contradicting one of the main aims of Delegated Legislation.

-          Statutory Instruments cannot be amended by Parliament, only approved, annulled or withdrawn.

-          As the Government Minister is part of the Government, they will normally get most of the votes.

-          As a result of these disadvantages the affirmative resolution is not used very often.

·         However with affirmative resolution the Statutory Instruments must always be debated by parliament and it is therefore more effective than some of the other controls.


Negative Resolution Procedure

·         The Statutory Instruments is law before Parliament, usually for 40 days, and becomes law unless either houses votes to annul it.

·         All members of both Houses can put down a motion known as a ‘prayer’ calling for annulment.

·         There is then a debate and vote.

·         If either House vote to pass the annulment motion, the Statutory Instruments does not become law.

·         More often however, the Statutory Instruments is not annulled during the 40 day period and so automatically becomes law.

·         Disadvantages:

-          Limited effect, as there is no requirement for MPs to look at the Statutory Instrument.

-          Most Delegated Legislation is not challenged and automatically becomes law after 40 days.

·         However, this method of control does give opportunity for any member of either House to raise objections.

·         This in turn may provide for more debate and consideration to be given to the provisions of the Statutory Instrument.