Chapter 6 Delegated Legislation

Chapter 6  

Delegated Legislation 

Introduction 

In this chapter you will learn : 

• Parliament may delegate its legislative powers via the enabling act 
• There are 3 types of delegated legislations 
• The advantages and disadvantages of delegated legislation 
• The need for control of powers delegated to the respective bodies 
• the types of control exercised by Parliament and courts 
• The effectiveness of the these controls 

6.1 What is delegated legislation? 

1. Laws made by individuals and persons other that Parliament acting under powers conferred by an enabling act. 

2. The enabling act lays down a basic framework of general principles and grants powers to others ( government departments , local authorities , or public or nationalised bodies ) to fill in the details. 

3. The specific power to make delegated legislation is contained in an enabling provision or enabling section in the Parent / Enabling Act. 

4. For example , S.97 ( the enabling provision ) of the Environment Act 1995 ( Enabling Act) under which the Hedgerow Regulations ( delegated legislation) were created. 

5. The output of delegated legislation greatly exceeds the output of Acts of Parliament - over 3,000 pieces of DL made each year compared to fewer than 100 Acts of Parliament. 

6.2 Types of delegated legislation 

1. Orders in Council 

The Queen and the Privy Council ( which is made up of the Prime Minister and other leading members of the government ) have the authority to make Orders in Council. Orders in Council are used to give legal effect to European Directives and to declare a state of emergency under the Emergency Powers Act 1920. 

b . Statutory Instruments 

1. Rules , regulations and orders issued by government ministers and departments under powers given to them by Acts of Parliament . SI's are national in effect and are used to add detailed technical rules to the general framework in the enabling act. In 2002 , 2899 SIs, compared to only 42 general Public Acts. 

2. Ministers and government departments are given authority to make regulations for areas under their particular responsibility . For example the Minister of Transport will be able to deal with necessary road traffic regulations. 

c . By Laws 

1. These can be made by local authorities to cover matter within their own area . Local bylaws may cover things like traffic control such as parking restrictions. 

By laws can also be made by public and nationalized bodies for matter within their jurisdiction . For example the British Railway Board Bylaws 1985 , which was created under powers conferred by the Transport Act 1962 . In Boddington v British Transport Police , the defendant was convicted for smoking on the rail service. 

6.3 Why is delegated legislation needed? 

Advantages  

1. Insufficient Parliamentary time - Parliament does not have the time to debate every detailed rule necessary for efficient government delegated legislation can supplement the broad primary legislation with detailed rules. 

2. The highly specialised and extremely technical nature of many of the regulations. Majority of MPs do not have the technical knowledge or expertise to consider such provisions effectively. ( For example - building regulations or safety at work rules.) 

3. Speed - allows rules to be made more quickly than by Parliament. Parliament does not sit all the time , and its procedure is slow and cumbersome. 

4. Allows consultation. Ministers can have the benefit of further consultation before regulations are drawn up. 

5. Flexibility - quicker and easier to amend and update than primary legislation . Unlike statutes , DL can be put into action and revoked very quickly. 

6. Delegated legislation often made in response to emergencies and urgent problems. 

7. Future needs - Delegated legislation can cater for future needs and enables changes to the law to be made easily. 

8. Need for local knowledge - Local by laws in particular can only be made effectively with awareness of the locality. 

Disadvantages 

1. Undermines Parliamentary sovereignty as persons or bodies other than Parliament are making a large amount of legislation and this contradicts constitutional theory . DL not always lay for Parliament. Even if required to be laid before Parliament, most become law under the Negative Resolution Procedure or the Affirmative Resolution Procedure. 

2. Lack of democratic involvement as it is usually made by civil servants and not elected politicians . This is not a problem where DL takes the form of detailed administrative rules but can cause problems if it is used to implement important policies. 

3. DL gives too much power to a politically motivated executive. 

4. Too much delegated legislation and insufficient controls. 

5. Delegated legislation not always adequately publicised. 

6. Sub-delegation - sometimes DL made by person other than those given the power under the enabling Act. 

6.4 Need for control 

1. Delegated legislation results in transferring law-making powers from the legislature to the executive . Since delegated legislation is not directly made by elected representatives , effective checks and controls are needed to ensure accountability and to prevent misuse. 

2. Too much delegated legislation is being created without attendant publicity or debate. 

3. Especially where the Enabling Act grants exceptional power to amend primary legislation through delegated legislation ( Henry VIII clause ) 

6.4.1 Control of delegated Legislation 

1. Publication - all delegated legislation is published and available for public scrutiny. 

2. Consultation with experts in relevant field and bodies likely to be affected by the delegated legislation. Some enabling acts make consultation compulsory. For example under the National Insurance Act 1946 , draft regulations must be submitted to the National Insurance Advisory Committee. 

6.4.2 Control by Parliament 

1. Control through the Enabling Act - the nature and scope of the powers to delegate are laid down in an Enabling Act. 

2. Statutory Instruments Act 1946 - All SI's are issued subject to the legal requirements of the Statutory Instruments Act 1946. 

3. The Legislative and Regulatory Reform Act 2006 now sets the procedure for the making of statutory instruments which are aimed at repealing an existing law in order to remove a 'burden'. Burden means (a) a financial cost (b) an administrative inconvenience © an obstacle to efficiency , productivity or profitability or (d) a sanction , criminal or otherwise which affects carrying  on of any lawful activity .Any minister making a statutory instrument under the powers of this Act must consult various people and organisations. Orders made under the power of this Act must be laid before Parliament . The three possible procedures include the negative resolution procedure , affirmative resolution procedure and the super-affirmative resolution procedure. 

4. Affirmative resolution procedure - The Statutory Instrument will not become law unless specifically approved by one or both House of Parliament. The need for Affirmative resolution will be included in the Enabling Act - for example - S.172 (5) of the Criminal Justice and Public Order Act 1994. Affirmative resolution is less common but provides more control than he negative resolution procedure. The disadvantage is that Parliament cannot amend. It can only approve , annul or withdraw the proposed delegated legislation. 

5. Negative resolution - Under this , the DL will be laid before Parliament and will be law unless it is rejected by Parliament within 40 days . The majority of Acts only require this. 

6. Scrutiny Committee ( Joint Committee of Statutory Instruments ) - The Scrutiny Committee is responsible for scrutinising all statutory instruments made in exercise of powers granted by Act if Parliament. The Scrutiny Committee does a technical ( not policy) review of delegated legislation. No consideration is given to the merits of the legislation . The main grounds for referring a statutory instrument back to the House of Parliament are that it appears to have a retrospective effect which is not provided at the enabling act ,it is unclear or defective , it is ultra vires the powers conferred in the enabling act or it imposes a tax or charge. 

7. Revocation - Parliament has power to revoke any delegated legislation or pass legislation on the same subject as the delegated legislation. 

8. House of Lords - The House of Lords can veto delegated legislation . For example the House of  Lords rejected the order imposing sanctions made against the Rhodesian Government made under Southern Rhodesian Act 1965. 

9. Questions from MPs - MPs can ask Ministers questions about DL at question time , raise them in debates. 

6.4.3 Control by Courts 

1. Judicial Review ( heard in the Administrative Court) 

1. The validity of a statute can never be challenged by the courts because of parliamentary sovereignty. 

2. Delegated legislation can be challenged through judicial review , on the basis that the person or body to whom Parliament has delegated its authority has acted in a way that exceeds the limited powers delegated to them. 

3. Any provision found to be outside this authority was ultra vires and consequently void. 

1. Procedural ground ( procedural ultra vires). 

• Here the aggrieved person is challenging the validity of the DL on procedural grounds. 
• In Agricultural , Horticultural and Forestry Industry Training Board v Aylesbury Mushroom Ltd., an order was declared invalid because the requirement to consult with interested parties ( here the Mushroom Growers Association ) before making it had not been properly complied with .( However the order was valid in relation to others affected by the order , such as farmers , as the Minister had consulted with the National Farmers Union.) 

2. Substantive ground ( substantive ultra vires) 

• Here the aggrieved person is challenging the validity of delegated legislation based on a claim that the measure under review goes beyond the powers conferred by the enabling act. 
• Commissioners of Customs and Excise v Cure and Deeley Ltd. (1962) - High Court invalidated the regulation made under Finance No.2 Act 1940 on the ground that they exceeded the powers conferred by the Act. The Commissioners were only empowered to collect such tax as was due by law , not to decide what amount they thought fit. 

2. Unreasonableness 

Courts may , hold particular delegated legislation to be void on the basis that it is unreasonable , made in bad faith or so perverse that no reasonable official could have made them . In Strictland v Hayes-Borough Council , a by-law prohibiting the singing or reciting of any obscene song or ballad and the use of obscene language generally was held to be unreasonable and so ultra vires, because it was too widely drawn in that it covered acts done in private as well as those done in public. 

C . The HRA 1998 fundamentally alters the power of the court over delegated legislation which may be declared ineffective by the courts where it is found not to comply with the provisions of the European Convention of Human Rights. 

6.4.4 effectiveness of Controls of Delegated Legislation 

1. Effective supervision is difficult as there is too much delegated legislation. 

2. Publication has limited benefits . The public is unaware of delegated legislation , the grounds to challenge and how to challenge. 

3. Judicial review by the courts relies on individual challenges being brought before court. Judicial review only happens once someone affected by the provisions ( who have locus standi ) is prepared and able to challenge it judicial review is expensive and time consuming and the rules are not straightforward. Aggrieved citizens generally do not know when , how and whether they can initiate a claim. 

4. Enabling Acts usually confer extremely wide discretionary powers on Ministers. Phrases like " the Minister may make such regulation as he sees fit for the purpose of bringing the Act into operation " - too wide and not much room for a provision made thereunder to be considered ultra vires. 

5. Scrutiny committee lacks real power, as in it unable to consider the merits of the delegated legislation. The Scrutiny Committee is confined to a technical review. Also its report has no binding effect. The Hansard Society has recommended referring draft instruments to the appropriate departmental select committee for policy review prior to affirmation. This would act as a policy filter, complementing the role of the Select Committee as a technical filter. 

6. Negative resolution is not effective . Statutory instruments will become law unless rejected within 40 days . This control assumes that MPs ( particularly Opposition MPs have had time to take an interest in a particular piece of delegated legislation to read it and to understand its implications. 

7. Affirmative resolution procedure - A better control than the negative resolution procedure. However owing to limited Parliamentary time , a large amount of business to go through and a Government majority in the House of Commons only rarely will delegate legislation not is approved. 

Learning outcome 

By now you should know that : 

• Parliament is not the sole legislative body 
• There are several types of delegated legislation 
• There are reasons for and against delegated legislation 
• To prevent ultra vires actions controls are essential 

Self - Assessment 

1. Define delegated legislation. 

2. What are the types of delegated legislations? 

3. List 5 advantages of delegated legislation. 

4. Why is there a need for control of powers conferred via the enabling act? 

5. List the types of controls by parliament. 

6. Define affirmative resolution procedure. 

7. What are the controls by courts? 

8. State 5 arguments supporting the effectiveness of delegated legislation. 

9. Give examples of statutory instruments. 

10. Aside from controls by courts and Parliament , state the other controls we have. 

Further reading  

Jacqueline Martin , The English Legal System , 6th Edition , pgs. 56-66 

Appendix - Sample delegated legislation 

Orders in Council 

• The General Optical Council ( Maximum Penalty ) Order of Council 1994 

Bye laws 

• Local Government Act 1972 

Statutory Instruments 

• Statutory Instruments Act 1946