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Delegated legislationTopic 2

Delegated legislation

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Delegated legislation

Types of delegated legislation

There are three main types of delegated legislation:

• bylaws

• statutory instruments

• Orders in Council

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Delegated legislation

Introduction to delegated legislation

Parliament does not have the time or the expertise to pass

every law that is required each year.

It is therefore necessary for it to give some of its power to

other people and organisations to make laws.

Parliament gives this power in an enabling Act.

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Delegated legislation

Bylaws

Bylaws are made by local councils and other public bodies.

For example, a local council might wish to ban drinking in

its town centre. Another example would be the fines

incurred by people who let their dogs foul in public parks.

Public corporations, such as the bus and train services, are

able to impose fines for non-payment of fares.

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Delegated legislation

Statutory instruments

Statutory instruments are regulations made by

government departments to implement the provisions

made in Acts of Parliament.

For example, the Department of Constitutional Affairs can

make changes to the provision of legal aid under the Legal

Aid Act 1998.

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Delegated legislation

Orders in Council

Orders in Council are laws passed by the Privy Council,

which is a group of senior politicians who are allowed to

make law without the need for the whole of Parliament to

be sitting.

The Privy Council has the power to pass laws in times of

emergency with the permission of the queen under the

Emergency Powers Act 1920. It may do this in wartime.

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Delegated legislation

Controls on delegated legislation

• general supervision of delegated legislation

• parliamentary supervision of delegated legislation

• court supervision of delegated legislation

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Delegated legislation

General supervision

Enabling Act: the enabling Act sets out the powers that

Parliament wishes to delegate.

Consultation: the enabling Act may specify that certain

organisations or experts must be consulted before

delegated legislation is made.

Publication: all delegated legislation is published and

made available for interested parties to read.

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Delegated legislation

Parliamentary supervision• All bylaws are checked by the relevant government minister.

• All statutory instruments are scrutinised by a group of MPs known as a select committee.

• Affirmative resolution procedure -requires some statutory instruments

to be voted on by Parliament.

• Negative resolution procedure - means that most statutory

instruments become law unless a debate is requested by a Member of

Parliament (MP).

• Question time - Government Ministers are accountable and can be

questioned by Parliament

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Delegated legislation

Court supervision

Judicial reviewUnder judicial review, an organisation or member of the

public may challenge a piece of delegated legislation in the

High Court.

The judge will interpret the wording of the enabling Act to

decide whether the law was made ultra vires (beyond the

powers granted by Parliament). If the legislation is found to

be ultra vires, it will be declared void.

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Delegated legislation

Judicial review

Substantive ultra vires: delegated legislation will be

declared void if it allows something that the enabling Act did

not intend, e.g. Commissioners of Customs and Excise v Cure

and Deeley (1962), or if the law made under the enabling Act

is ‘unreasonable’ (‘Wednesbury unreasonableness’).

Procedural ultra vires: the enabling Act may set out certain

procedures that must be followed before delegated legislation

can be passed, e.g. Agricultural, Horticultural and Foresty

Training Board v Aylesbury Mushrooms Ltd (1972).

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Delegated legislation

Advantages of delegated legislation

• It saves time. Parliament is only able to pass about 50 Acts of Parliament per year. It is therefore vital for it to delegate power to make the thousands of other necessary laws.

• It is flexible. Delegated laws can be passed more

quickly if they are not required to go through the official

legislation process.

• It is made by experts.

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Delegated legislation

Disadvantages of delegated legislation

• It is undemocratic because it is made by unelected

people rather than by Parliament.

• The sheer quantity of delegated laws made each year

makes it difficult for the public to be informed of all

the changes to the law.

• Although there are controls and checks for delegated

legislation, the large quantity makes it difficult for proper scrutiny to occur.