Delegated Legislation
Byelaws
Parent Act > Public Body > Authority > Minister > Law
Statutory Instruments
Parent Act > Minister > Laid before Parliament > Negative Resolution Procedure or Affirmative Resolution Procedure > Law
Orders In Council
Parent Act > Privy Council > Queen
Allows the government to make laws without going to Parliament
Used on a wide range of matters
Can be used to amend or update existing law e.g. Misuse of Drugs Act 1971
Transferring responsibility between gov departments
Bring Acts into force
Giving legal effect to EU directives
Dealing with some aspects of foreign affairs
Making law in times of national emergency
Dissolving Parliament
Regulation of some professional bodies
The must be an EA to allow the council to make law on a particular topic
Rules regulations and orders
Made by ministers and government departments who are given authority
Can be very short, or long detailed regulations that are too complex to put in an act
Important way of making law as 3,500 made each year
Apply nationally and have a wide impact
Used to fill in the details of an act, or bring it into force
Examples
Building Regulations 2010
Police Codes of Practice
Made by local authorities to cover matters in their own areas
Can be made public corporations and certain companies for matters within their jurisdiction involving the public
British Airport Authorty
Railway companies
Limited to a particular geographical area
National Trust
Local council
Criminal offences
Subject to ministerial approval before they become law
Only apply to public areas
Parent Acts
Local Government Act 1972
National Trust Act 1907
Parent Acts
Health Act 2006
Road Traffic Regulations Act 1984
Parent Acts
Emergency Powers Act 1920 > Civil Contingencies Act 2004
Misuse of Drugs Act 1971
Controls
Often made by unelected bodies and many people have power to make law
Parliamentary Controls
EA Checks
Parliament has initial control as it limits the DL that can be made
An Act will set out which minister will make regulations, what types of law can be made, where they can be implemented and who else must be consulted
Parliament can repeal the powers given in the EA
Various parliamentary committees to scrutinise
Joint Committee on SI's, Secondary Legislation Scrutiny Committee
Affirmative Resolution
Negative Resolution Procedure
Only applies to a small number of SI's
Not become law unless specifically approved by Parliament
Need is stated in the EA
Parliament can only approve, annul or withdraw
Applies to all SI's unless under ARP
Will become law unless rejected by Parliament within 40 days
Very few looked at
Available for Parliamentary Committees to look at
Objection requires a vote
Super-affirmative resolution procedure
Procedure available if the DL has been made under the authority of the Legislative and Regulatory Reform Act 2006 when Parliament is given greater control as the Act gives Ministers very wide powers to amend Acts
Parliament can normally only do this under the principality of parliamentary sovereignty
Questioning of Government Ministers
Individual ministers can be quizzed by MPs in Commons on the work of their departments
Scrutiny Committees
More effective check on the Joint Committee
They review all SI's and will draw attention from both Houses if necessary
Review is technical and not based on policy. Main grounds for reference
Imposes a tax, only elected bodies
Retrospective
Gone beyond EA powers
Unusual or unexpected use of powers
Unclear or defective
Can only report back their findings, cannot alter
Review is limited to points
Regulations cannot be stopped by them
Effectiveness
Sheer number means not all can be looked at and given proper scrutiny
Difficult to remove legislation
Much DL is technical and scrutinisers do not have sufficient knowledge to assess if it has been validly made
Can only make recommendations and Parliament can choose not to act
Court Controls
Can be challenged in court by a person of sufficient standing or interest in the case
Can be challenged by judicial review on the grounds it is ultra vires
Ruled by the court to be UV
R v Home Secretary, ex parte Fire Brigades Union (1995) changes made by Home Secretary to the Criminal Injuries Compensation scheme where decided to have gone beyond the powers given in the Criminal Justice Act 1988
UV because the correct procedure has not been followed
Aylesbury Mushroom Case (1972) Minister for Labour had to consult 'any organisation ... appearing to him to be representative of substantial numbers of employees engaging in the activities concerned'. Failed to consult the Mushroom Growers Association, meaning a order to set up a training board was invalid as it went against the interests of Mushroom growers
R v Secretary of Sate for Education and Employment, ex parte NUT (2000) ruled that a SI setting conditions for appraisal and access to higher pay-rates went beyond the powers given in the Education Act 1966. It also only gave 4 days for consultation
Wendesbury Unreasonable UV
Rogers v Swindon NHS Trust (2006) woman with breast cancer denied prescript drug as her case was not deemed exceptional, though it was provided for other patients
Effectiveness
Piece of DL can only be challenged by a person of sufficient 'standing' who is affected by the law
Person will usually have to challenge a public body or government department who will have greater resources and funding
UK is in the EU so SI's can be declared void if the conflict with EU law
Why?
Detailed Law
Large number of rules and regulations in the modern world
Needed to make society work safely and efficiently
Parliament does not have time to deal with all the detail
Using DL means Parliament has control through EA
Expert/Local Knowledge
Needs expert knowledge of the subject to draw up the most effective laws
Impossible for Parliament to have all that knowledge
Better for Parliament to discuss the main details throughly
Byelaws> local councils know their own areas
Parliament cannot deal with all the local requirements
Consultation
Important for technical law where it is necessary to make it accurate and workable
Be creating law through DL, ministers can have the benefit of consltations
Some EA's mean consultations must happen with interested persona before any new regulations are passed
Advantages
Saves Parliamentary time, don't have time to debate every small detail
Access to technical expertise, impossible for MPs to have all the knowledge
Allows consultation, important for rules on technical matters so it can be workable
Quick, Orders in Council can pass laws very quickly, acts take a long time
Easy to amend, Can be easily amended or revoked to keep it up to date, useful for monetary limits like minimum wage, ministers can also respond to new circumstances
Disadvantages
Difficult wording, shares problem with acts that wording is complex and many have difficulty understanding the law
Sub-delegation, authority handed down another level 'rubber-stamped'
large volume and lack of publicity means it is difficult to discover what the current law is. Much is made in private without debate
Undemocratic, cannot be made of byelaws