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