Lecture # 8 Delegated legislation - VLCvlc.com.pk/English Legal System ELS/ELS 8 Delegated...Delegated legislation By: Salik Aziz Vaince [0313-7575311] Introduction It is true that
Post on 08-Nov-2020
2 Views
Preview:
Transcript
©VLC Publishers www.vlc.com.pk Page 1
Lecture # 8
Delegated legislation
By: Salik Aziz Vaince
[0313-7575311]
Introduction
It is true that the main function of the executive is to enforce laws but in certain cases, the power of
making rules is delegated to the various departments of the government.
Delegated legislation is becoming more and more important in modern times.
Delegated legislation is legislation or law that is passed otherwise than in Parliament but with the
authority of parliament. That authority is given in the parent Act known as enabling Act which creates
the basic framework and the delegates the powers to the other bodies to make detailed law in that
area.
In the United Kingdom, Instead, an enabling Act (also known as the parent Act) confers a power to
make delegated legislation on a Government Minister or another person or body. Several thousand
pieces of delegated legislation are made each year, compared with only a few dozen Acts of
Parliament.
Delegated legislation can be used for a wide variety of purposes, ranging from relatively narrow,
technical matters, to filling in the detail of how an Act setting out broad principles will be implemented
in practice.
Definition
Delegated legislation is law made by an executive authority under powers delegated from a legislature
by enactment of primary legislation; the primary legislation grants the executive agency power to
implement and administer the requirements of that primary legislation.
Parliament passes
A
Parent Act
This Act gives the right to create one
of the following types of delegated
legislation.
Orders in Council
made by Queen
and Privy Council
Statutory
Instrument made
by Govt. Ministers
Bylaw made by
Local Authority
©VLC Publishers www.vlc.com.pk Page 2
Need of Delegated Legislation and Causes of its Growth
The concept of state has changed and instead of talking about a police state, we think in terms of a
welfare state. This change in outlook has multiplied the functions of the government.
This involves the passing of more laws to achieve the ideal of welfare state.
Formerly, every bill used to be a small one but civilization has become so complicated that every piece
of legislation has to be detailed. The rise in the number and size of the bills to be passed by Parliament
has created a problem of time.
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. That authority lies Within the Act for specific person
(such as a Government Minister) or body (such as a local authority) to make further more detailed
laws. There are many factors of its growth which are as below:
1. Pressure of work- Parliament is an extremely busy body. It is overloaded and burdened with
legislative work. It has to enact so many legislation that it can hardly look into detail of every law. The
time available for drafting bills to be passed into law by parliament is not adequate. If an attempt is
made to draft detailed bills within a short period, the drafting is bound to be defective. No wonder
power is delegated to the departments concerned to issue orders-in-council which can be made at
leisure and which can be expected to be logical and intelligible. Delegating legislation allows law to be
made more quickly than parliament, which is vital for times of emergency. Parliament takes longer as
it does not sit all the time and its procedures is generally quite slow and complex due to the several
stages each bill has to pass through. Delegated legislation can also be amended or revoked relatively
easily, so that the law can be kept up to date and so that the law can meet future needs that arise such
as areas concerning welfare benefits, illustrating a great deal of flexibility in the system. Otherwise
statutes can only be amended or revoked by another complicated and time-consuming statute.
Relieves pressure on Parliamentary time. It is realized that all this legislation cannot be enacted even if
the members of parliament are prepared to work day and night. The result is that Parliament resorts
to the device of passing skeleton bills and leaving the work of filling in the details to the departments
concerned.
2. Technicality of subjects - Modern legislation is becoming highly technical and it is too much to
expect that the ordinary members of Parliament will appreciate all the implications of modern
legislation. Except a few experts in certain lines, the other members of parliament are bound to bungle
if they attempt to do the impossible. Some of the legislations required to be enacted may be technical
in nature. The members of the legislature do not enjoy expertise over every subject. MPs do not
usually have the technical knowledge/expertise required in for example drawing up laws on controlling
technology, ensuring environmental safety, and dealing with different industrial problems or
©VLC Publishers www.vlc.com.pk Page 3
operating complex taxation schemes whereas delegated legislation can use experts who are familiar
with the relevant areas. Jacqueline Martin has suggested instead for parliament to debate the main
principles thoroughly, but leave the detail to be filled in by those who have expert knowledge of it. The
‘Commons can concentrate on important laws, rather than technicalities under the circumstances, it is
considered safe to approve of general principles of legislation and leave the details to the department
concerned.
3. To meet unforeseen/emergency situations - There might arise certain emergency were
adjustments are required in the prevailing law urgently or frequently. The process of amendment in
the Parliament is a very time consuming and lengthy procedure. Delegated Legislation gives power of
adaptation in new situations. ‘The practice further, is valuable because it provides for a power of
adaption of unknown future condition without the necessity of amending the legislation. The method
the delegated legislation permits for the rapid utilization of experience, and enables the rules of
consultation with interests affected by the operation of new acts to be translated into practice. It is
impossible for Parliament to meet all emergency situations, so it is required to giver powers to
concerned department.
4. Flexibility- In case of delegated legislation changes in the legislation take place more frequently and
without delay, this is not possible in legislation by parliament. Moreover, the implementation of law
becomes easier and flexible by means of delegated legislation. Delegated legislation is necessary for a
number of reasons; parliament does not have time to contemplate and debate every small detail of
complex regulations, as it only has a limited amount of time to pass legislation, delegating legislation
will allow however thoroughly debated regulations to pass through as well as saving parliamentary
time. Delegated legislation gives flexibility to law and it is best way to adjust the laws in the light of
experience in relevant area. Can be made at any time, as opposed to Acts that must be timetabled
5. To fulfill local needs - Another argument for the need of delegated legislation is that parliament
may not always be the best institution to recognize and deal with the needs of local people. As a result
local people elect councilors from certain districts and it is their responsibility to pass legislation in the
form of by-laws to satisfy local needs. That Law made by local authorities with the proper local
knowledge. Moreover, full knowledge of the local conditions may not be available to the Parliament at
the time of passing the law.
6. Speed – Delegated legislation can be made with more speed as compared to Parliament legislation.
Contrast to average 9 months for Parliamentary statute. Food Protection Order 1986- 2 hours.
7. Future needs – Delegated legislation fulfills future needs very easily, that may not be catered for by
statute.
What delegated legislation does?
Delegated legislation allows the Government to make changes to a law without needing to push
through a completely new Act of Parliament. The original Act (also known as primary legislation)
would have provisions that allow for future delegated legislation to alter the law to differing degrees.
©VLC Publishers www.vlc.com.pk Page 4
These changes range from the technical, like altering the level of a fine, to fleshing out Acts with
greater detail; often an Act contains only a broad framework of its purpose and more complex content
is added through delegated legislation.
Making of Delegated Legislation
Delegated legislation is usually made by being signed by the person making it (or an authorized
delegate of that person, for example a Senior Member of the Civil Service, although in the case of
Orders in Council the verbal assent of the Queen is sufficient.
Most delegated legislation is required (by the parent Act) to be made using a Statutory Instrument.
This ensures that the legislation is catalogued and (apart from a few exceptions) published by the
Queen's Printer, thereby making it available to the public as a whole.
However where delegated legislation is of only limited application (for example, most Directions and
by-laws), and therefore not of general importance, the parent Act may not require that it be made
using a Statutory Instrument. Instead, other provisions may be made for publishing the legislation. So,
for example, an Order providing for the transfer of contracts from one National Health Service body to
another may only be notified to the affected bodies, and by-laws made by a local council may be
publicized through an announcement in local newspapers.
Layout of Delegated Legislation
Most delegated legislation will begin with a preamble which sets out who is making the legislation, the
authority (precisely which sections of which Acts of Parliament) under which it is passed and, where
appropriate, confirming that any pre-conditions required by the parent Act (for example, approval of a
draft by each House of Parliament, or consultation with specified organisations) have been met.
What term is used to refer to the individual clauses of delegated legislation will depend on which type
it is:
- In Orders, Orders in Council and Orders of Council, each clause is called an article.
- In Regulations, each clause is a regulation.
- In Rules, each clause is a rule.
- In Directions, and in the Schedules of Orders, Regulations and Rules, each clause is called a
paragraph.
Clauses may be grouped under headings and in complex delegated legislation; the document may be
divided into Parts. The main body of the delegated legislation may be followed by Schedules setting
out even more detailed provisions.
There will also usually be an explanatory note describing, in summary form and using non-legal
language, the purpose and scope of the legislation. The explanatory note is for convenience only and
has no legal effect.
Types of Delegated Legislation
Delegated legislation can take a variety of forms, each of which are for different purposes. However
the boundaries between the different types are not fixed, and which type of delegated legislation is
used will be determined by the wording of the parent Act.
©VLC Publishers www.vlc.com.pk Page 5
Statutory Instruments (SIs)
By-law, order, ordinance, or regulation issued by a government or its agencies for the enactment or
enforcement of a specific statute. Statutory instruments detail the measures that must be taken by
the entities to which they are addressed. Also called statutory rule.
Statutory instruments are made in a variety of forms, most commonly Orders in Council, regulations,
rules and orders. The form to be adopted is usually set out in the enabling Act.
Statutory Instruments, also known as SIs, are a form of legislation which allows the provisions of an
Act of Parliament to be subsequently brought into force or altered without Parliament having to pass a
new Act. They are also referred to as secondary, delegated or subordinate legislation.
Acts of Parliament confer powers on Ministers to make more detailed orders, rules or regulations by
means of statutory instruments. An Act will often contain a broad framework and statutory
instruments are used to provide the necessary detail that would be too complex to include in the Act
itself.
Statutory instruments can also be used to amend, update or enforce existing primary legislation.
Statutory instruments are laws made by a government minister under the authority of a
parent/enabling Act within the area of their ministerial responsibility. Statutory instruments are often
used to update law, for example to increase in the amount of the national minimum wage under the
National minimum wage Act 1998. Law that is made to comply with directives from the European
Union is usually made in the form of a statutory instrument.
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.
Approximately 3000 SIs are issued each year, making up the bulk of delegated legislation.
The Delegated Powers Scrutiny Committee (established in 1992) keeps under constant review the
extent to which legislative powers are delegated by Parliament to government ministers, and examines
all Bills with delegating powers which allow SIs to be made before they begin their passage through the
House.
There is an informal understanding in the Lords that, when the Delegated Powers Committee has
approved provisions in a Bill for delegated powers, the form of those powers should not normally be
the subject of debate during the Bill's subsequent passage.
The House of Commons has no equivalent committee.
The House of Lords Secondary Legislation Scrutiny Committee (formerly the Merits Committee)
Established in 2003, the Lords Secondary Legislation Scrutiny Committee considers every negative and
affirmative SI (or draft SI) laid before Parliament - about 1200 per year - with a view to determining
whether the special attention of the House should be drawn to it on any of the following grounds that
it:
©VLC Publishers www.vlc.com.pk Page 6
Add detail to the parent Act Road Traffic Act 1972. All motorcyclists must wear helmets; it is left to
Minister of Transport however to legislate on the details such as what type of helmet
Road Vehicle Regulations 2003. Mobile phones cannot be used while driving.
Rule
The term ‘rule’ is defined in the General Clauses Act, 1897 as a rule made in exercise of power
conferred by any enactment. A Statement that establishes a principle or standard, and serves as a
norm for guiding an action or conduct.
It also includes a regulation made as rule under any enactment. These rules may be applicable to a
particular individual or to the general public.
In simple words rule is a statement that tells you what is or is not allowed in a particular game,
situation, etc.
Rules set out procedures, for example rules governing court procedures, or the way in which the
Patent Office deals with applications. Rules may be made by Ministers or, if specified in the parent Act.
Rules may be divided into four general categories:
- (1) Folklore: Unpublished rules that are conveyed by behavior and are implicitly understood.
- (2) Guidelines: Commonly published and recommended practices that allow some discretion with
their interpretation and use.
- (3) Mandates: Published commands that may not be ignored in any circumstance and whose
violation is punished.
- (4) Policies: Published rules that imply a predicted behavior and whose violation may be permitted
or tolerated under certain circumstances.
Regulation
An official rule or law that says how something should be done. Regulations are also usually made by
Ministers.
Regulations are the means by which substantive and detailed law is made, for example setting out in
detail how an Act is to be implemented. Regulations made under the European Communities Act 1972
are the means by which the Government most often implements European law within the United
Kingdom.
This term is not confined to delegated legislation only. It means an instrument by which decision,
orders and acts of the government are made known to the public. But in the sphere of delegated
legislation, the term relates to the situation where power is given to fix the date for the enforcement
of an Act or to grant exemption from the Act or to fix prices etc.
Directions
The act of governing; management. A statement that tells a person what to do and how to do it.
Directions are a means by which Ministers give legally binding instructions to a public body about the
way it exercises its functions.
The term ‘direction’ is an expression of administrative rule making under the authority of law or rules
or orders made there under. These may be recommendatory or mandatory. If mandatory, they have
the force of law.
©VLC Publishers www.vlc.com.pk Page 7
Scheme
A systematic plan of action. A broad outline of how an objective can be achieved. It is not a formal
plan and will not show every detail.
The term ‘refers’ to a situation where the law authorizes the administrative agency to lay down a
frame work within which the detailed administrative action is to proceed. Schemes: for example,
schemes made by the Charity Commission to amended how a charity is governed.
Orders in Council
Orders in Council are drafted by the Government and given formal approval by the Queen and the
Privy Council. Orders in Council are generally used where it would be inappropriate for the order to be
made by a Minister, for example where the matter is of constitutional significance.
Orders are usually made by Ministers. An Order is an exercise of executive powers, for example to
create or dissolve a public body. Commencement Orders are used to set the date on which an Act, or
part of an Act, comes into force.
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.
The Privy Council is made up of the Prime Minister, senior current and former politicians,
senior judges and members of the Royal Family. This allows the Government to make legislation
without going through Parliament and usually made when Parliament is not sitting. 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.
Bylaws:
Byelaws are laws of limited application (usually restricted to certain places) made by local authorities
or certain other bodies to control the activities of the people in public spaces, such as in public parks or
on public transport.
The term has been used to mean the rules made by autonomous bodies.
Bylaws can be made by local authorities to cover matters within their own areas.
Many local Bylaws will involve traffic control, such as parking restrictions.
©VLC Publishers www.vlc.com.pk Page 8
Bylaws can be made by public corporations and companies for matters within their own control which
involve the public, e.g. the smoking ban on the London Underground system.
They must be approved by the relevant Government Ministers before they are enforceable in the
Courts.
Many by-laws are made under the authority of the Local Government Act 1972.
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
There are controls in place in relation to delegated legislation to ensure that those who make law
under it are doing it in an appropriate manner.
Why is it necessary to have controls over delegated legislation?
There are many important reasons why it is necessary to have controls over delegated legislation.
Currently delegated legislation is made by non-elected bodies away from democratically elected
politicians (parliament) , as a result many people have the power to pass delegated legislation, which
provides a necessity for control, as without controls bodies would pass outrageous unreasonable
legislation which was attempted in the past; in the Strictland V Hayes Borough Council (1986) where a
bylaw prohibiting the singing or reciting of any obscene language generally, was held to be
unreasonable and as a result the passing of this delegated legislation was rejected.
You may have been surprised to read that through delegated legislation an enormous amount of law is
made every year outside of the democratically elected parliamentary process and therefore this law is
being made by non-elected people. There are, however, certain safeguards to ensure that delegated
legislation is controlled by way of both parliamentary and judicial control.
Below I describe cases where controls over delegated legislation have been essential in order to avoid
authorities abusing their powers, the particular cases are:
R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000) a
High Court judge ruled that a statutory instrument setting conditions for appraisal and access to higher
of pay for teachers was beyond the powers given under the Education Act 1996 as a result the
statutory instrument was declared void. This case demonstrated a clear example of where delegated
legislation can lead to abuse of powers and why it is necessary to have controls over delegated
legislation.
Commissioners of Custom and Excise v Cure and Deely Ltd (1962) Finance Act gave Customs and
Excise power to make any law they wanted. This was wrong as it gave a government department more
power than Parliament. This is a case where it has been clearly demonstrated without controls many
authorities will abuse the powers.
Another issue which occurs making controls over delegated legislation vital is sub legislation, which is
where law making is handed down another level to people other than those who were given the
original power to do so, to implement important policies. Creating criticism that our law is made by
civil servants (who may know hardly anything about the law) and just rubber stamped by the Minister
©VLC Publishers www.vlc.com.pk Page 9
of that department, this requires law passed by these civil servants to be checked by the scrutiny
committee of parliament or the courts.
Finally delegated legislation can share the same issues as Acts of Parliament such as ambiguous
wording that can lead to difficulty in understanding the law, which again makes controls necessary as
parliament or the courts can stop unclear legislation, which will affect the lives of hundreds of people
from passing.
General control methods
The initial control Parliament has over delegated legislation is through the limits it sets in the
parent/enabling Act. The parent/enabling Act will set out how the delegated legislation must be made
and may set out certain procedures, to be followed. Parliament may repeal or amend the piece of
delegated legislation. However, the effectiveness of this control is limited, because of the amount of
delegated legislation made; Parliament will not be able to check it all. All by-laws are confirmed or
approved by the relevant government minister. This should ensure that all locally made law is overseen
by those with the expertise of the technical issues involved. Control over DL can be categorized as
below:
Consultation
The creators consult experts in the relevant field. The enabling Act may make such consultation
compulsory.
Ministers have the benefit of further consultation before regulations are drawn up. Those who make
delegated legislation often consult experts in those relevant fields as well as those bodies who are
likely to be affected by it.
An example of a consultation process could be given under road traffic regulations, where ministers
are likely to seek the advice of police, motoring organisations, vehicle manufacturers and local
authorities before making the rules.
Publication
All delegated legislation is published and therefore provides an opportunity for public scrutiny.
However publication has only limited benefits. The large volume of delegated legislation makes it
difficult for the public to understand what the current law is; also the majority of delegated legislation
is made in private in contrast to the public debate of parliament.
People are also unaware of their rights; on what grounds law can be challenged and how to go about
doing so making it difficult for public scrutiny.
On the other hand many people also lack financial resources to go to court, which means legislation is
let unchallenged.
Control by Parliament
Parliament exercises control over delegated legislation in that when the Act of Parliament is created,
Parliament stipulate in the Act of Parliament the parameters with regard to delegated legislation, by
which delegated legislation made by Statutory Instrument may either need to be approved by a vote
©VLC Publishers www.vlc.com.pk Page 10
of each House of Parliament before it is made, or be subject to a veto by either House within a certain
period of time after it is made through the doctrine of parliamentary sovereignty.
Further, there are scrutiny committees which consider delegated legislation within a Bill as it passes
through the Houses of Parliament.
This is fairly limited, though obviously Parliament has the initial control with the enabling Act which
sets the boundaries within which the delegated legislation is to be made.
It reports its findings to the House of Lords before the committee stage of the Bill, but has no power to
amend Bills.
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.
©VLC Publishers www.vlc.com.pk Page 11
Affirmative Resolution Procedure
Through an affirmative resolution procedure where a statutory instrument may not become law
unless specifically approved by parliament; parliament will put an instruction under the Parent Act,
informing that the issue is required to be debated and voted upon before it becomes law.
Under the affirmative resolution procedure parliament may be required to vote for its approval of the
delegated legislation, which will provide a fair system as each Member of Parliament will represent the
public or a specific body and will provide different views on different laws, it would also ensure that
full parliamentary attention has been drawn to important legislation. MPs also have the advantage of
asking ministers questions about delegated legislation at question time or raise them in debates. A
small number of statutory instruments will be subject to an affirmative resolution.
For example, an affirmative resolution is required before new or revised Police Codes of Practice under
the Police and criminal Act 1984 can come into force.
Disadvantages:
A major disadvantage of this procedure however is that parliament cannot amend the statutory
instrument; it can only be approved, or withdrawn.
Another disadvantage of this procedure is that it can be fairly time consuming of parliamentary time
due to carrying out votes and opposition parties having the opportunities to raise any objections which
contradicting one of the main aims of Delegated Legislation.
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.
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
Initially, Parliament has control in that the enabling or parent Act passed by Parliament sets out the
framework or parameters within which delegated legislation is made but there are some other ways.
New DL displayed in Parliament and will become law unless any MP objects within 40 days.
Most other statutory instruments will be subject to a negative resolution, which means that the
relevant statutory instrument will be law unless rejected by Parliament within 40 days.
Individual Ministers may also be questioned by MPs in Parliament on the work of their departments,
and this can include questions about proposed regulations.
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.
©VLC Publishers www.vlc.com.pk Page 12
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.
Control by the Court (Judicial control)
Judicial control is exercised through the means of judicial review. Because delegated legislation is made
by a person exercising a power conferred by an Act of Parliament for a specified purpose, rather than
by Parliament exercising its sovereign law-making powers, it can be struck down by the courts if they
conclude that it is ultra vires This would be the case if the Government attempts to use delegated
legislation for a purpose not envisioned by the parent Act, or if the legislation is an unreasonable use of
the power conferred by the Act, or if pre-conditions imposed by the Act (for example, consultation
with certain organizations) have not been satisfied.
Delegated legislation is also subject to control by the courts whose judges can declare a piece of
delegated legislation to be ultra vires. Ultra vires means 'beyond powers', so the court would be saying
that a piece of delegated legislation went beyond the powers granted by Parliament within the
enabling Act. If the court does this, then the delegated legislation in question would be void and not
effective.
Any Court action which is brought challenging delegated legislation is done through the means of
Judicial Review. If the Court finds that a piece of delegated legislation is ultra vires then that legislation
can be declared void.
There are two types of ultra vires.
Procedural ultra vires
The court can hold that delegated legislation is ultra vires if the correct procedure has not been
followed. This is where the enabling Act sets out the procedural rules to be followed by the body
which has been given the delegated power. The court can find the delegated legislation to be ultra
vires and void if these rules were not followed.
In the Aylesbury Mushroom case (1972) Agricultural Horticultural and Forestry Industry Training
Board v Aylesbury Mushrooms Ltd (1972) 1 All ER 280 delegated legislation required the Minister of
Labour to consult 'any organisation … appearing to him to be representative of substantial numbers of
employers engaging in the activity concerned' about the establishment of a training board. The
Minister failed to consult the Mushroom Growers' Association which represented about 85 per cent of
all mushroom growers. Therefore, the delegated legislation was declared to be ultra vires on
procedural grounds.
Substantial ultra vires
This is where the delegated legislation goes beyond what Parliament intended.
In R v Secretary of State for Education and Employment, ex parte National Union of Teachers(2000)
QBD, the High Court determined that an SI concerning teachers' pay and appraisal arrangements went
©VLC Publishers www.vlc.com.pk Page 13
beyond the powers provided under the Education Act 1996. Therefore, the delegated legislation was
declared to be ultra vires on substantive grounds.
Relevant case laws: The court will ask;
a) Did the maker of the DL exceed the powers given in the parent Act?
Bulger case 1996 Home Secretary Michael Howard intervenes to increase minimum sentence of 2
murderers from 8 to 15 years; this was ultra vires.
R v Wood 1855 Minister for Health created an SI that would force all people to clear snow off their
own paths, on the pretext that it was an “unhygienic substance”
b) Is the DL irrational or unreasonable?
Strickland v Hayes BC a bylaw would prohibit obscene songs/language in any place, including in
private, Held to be unreasonable.
c) Has there been a defect in the procedure by which the DL was made?
Aylesbury Mushroom Case 1972 the minister did not consult the Mushroom Growers’ Association
when the enabling act required them to.
Conclusion -Are the different controls satisfactory?
After having reviewing the controls that exist over delegated legislation I have discovered many flaws
in the system such as the Scrutiny Committee not being able to consider the merits of any piece of
delegated legislation (only whether the delegated legislation has been correctly used) and the Scrutiny
Committee having no power to alter any statutory instruments and parliament only being able to
approve, withdrawal or annul legislation.
As a result the different controls are not satisfactory; however there are reformations that could take
place to improve the current delegated legislative process.
Parliament should be able to amend a statutory instrument rather than just withdrawing it, approving
it or simply annulling it.
Another reformation that could take place in order to improve the current system of delegated
legislation is for parliament to vitally consider the critical findings of the Scrutiny Committee, as it is
appalling to know that months and years of hard work from the Scrutiny Committee on delegated
legislation is simply ignored by parliament.
Importance of Delegated Legislation
There are several reasons why delegated legislation is important.
Firstly, it avoids overloading the limited Parliamentary timetable as delegated legislation can be
amended and/or made without having to pass an Act through Parliament, which can be time
consuming. Changes can therefore be made to the law without the need to have a new Act of
Parliament and it further avoids Parliament having to spend a lot of their time on technical matters,
such as the clarification of a specific part of the legislation.
Secondly, delegated legislation allows law to be made by those who have the relevant expert
knowledge. By way of illustration, a local authority can make law in accordance with what their locality
needs as opposed to having one law across the board which may not suit their particular area. A
©VLC Publishers www.vlc.com.pk Page 14
particular Local Authority can make a law to suit local needs and that Local Authority will have the
knowledge of what is best for the locality rather than Parliament.
Thirdly, delegated legislation can deal with an emergency situation as it arises without having to wait
for an Act to be passed through Parliament to resolve the particular situation.
Finally, delegated legislation can be used to cover a situation that Parliament had not anticipated at
the time it enacted the piece of legislation, which makes it flexible and very useful to law-making.
Delegated legislation is therefore able to meet the changing needs of society and also situations which
Parliament had not anticipated when they enacted the Act of Parliament.
Advantages/Needs of Delegated Legislation
Saves Parliamentary time, In order to reduce pressure on parliamentary time, Acts of
Parliament often give government ministers or other authorities the power to regulate administrative
details by means of 'delegated' or secondary legislation. Parliament does not have the time to consider
and debate every small detail of complex regulations hence giving the authority to a body/individual
under them, for example the fine detail of a public sector pension scheme or the precise design of
traffic signs, thereby freeing Parliament to discuss matters of broad principle and policy.
Flexibility: delegated legislation is flexible enough to deal speedily with changing circumstances.
Delegated legislation is more flexible than an Act of Parliament. It can be passed quickly and easily
amended or revoked, so that the law is up to date, and to deal speedily with changing circumstances,
for example increasing costs of services, developments in scientific knowledge or minor changes in
policy.
Expert legislation: Parliament passes the parent Act and those with technical expertise or
necessary knowledge can fill in the details, it allows laws relating to technical matters to be prepared
by those with the relevant expert knowledge. Also Parliament may not have the necessary technical
expertise or knowledge required. Modern society has become very complicated and technical, so that
it is impossible for members of Parliament to have all knowledge needed to draw up laws on
controlling technology for example health and safety regulations in different industries need expert
knowledge, ensuring environmental safety, dealing with various industrial problems or operating
complex taxation schemes while local parking regulations need local knowledge also. It is thought that
it is better for parliament to debate the main principles thoroughly, but leave the detail to be filled in
by those who have expert knowledge of it.
Practical legislation: Government Ministers often consult interested bodies and parties before
drafting statutory instruments, or Ministers can have the benefit of further consultation before
regulations are drawn up. Consultation is particularly important for rules on technical matters, where it
is necessary to make sure that the regulations are technically accurate and practical. Some Acts that
are giving the power to make delegated legislation set out that there must be consultation, before the
regulations are created. For example, before any new or revised police Code of practice under the
Police and Criminal Evidence Act 1984 is issued there must be consultation with a wide range of
people.
©VLC Publishers www.vlc.com.pk Page 15
To Meet emergency situations: This also makes it priceless in emergencies when very swift
action is required – delegated legislation made under emergency powers can be drafted, enacted and
brought into force in a matter of hours rather than the days, weeks or months that would be required
to pass an Act of Parliament. It allows rapid action to be taken in times of emergency. The Food
Protection (Emergency Provisions) Order 1986 was made and laid before Parliament and came into
effect less than two hours later, prohibiting the movement or slaughter for food of sheep in certain
areas thought to have been affected by radioactive fallout from the incident at the Chernobyl power
station.
To keep the law up to date: It can also be amended or retracted easily when necessary, so
that the law can be kept up to date, and Ministers can respond to new or unexpected situations by
amending or developing the statutory instruments.
Compatibility with International law: It allows for the fulfillment of international
obligations where amendment is impossible and Parliament can say only yes or no. The Diseases of
Poultry Order 1994, made under the Animal Health Act 1981 and imposing measures to prevent the
spread of avian flu and Newcastle disease, was made in response to an EC directive requiring such
measures. Similarly, the Mental Health Act 1983 (Remedial) Order 2001 was made in response to a
declaration of incompatibility under the Human Rights Act 1998.
The disadvantages/criticisms of Delegated Legislation
Insufficient control: Delegated legislation can also be criticized on the grounds that it is subject
to less parliamentary scrutiny than primary legislation and thereby may potentially be used by the
Government in ways which Parliament had not intended or appreciated when it conferred the power.
Parliament therefore has a lack of control over delegated legislation and this can lead to
inconsistencies in laws. In addition, delegated legislation therefore has the potential to be used in ways
which Parliament had not anticipated when it conferred the power through the Act of Parliament. One
reason of this disadvantage is that there is a large amount of statutory instruments (over 3,000 per
year). (“The more laws, the less justice.")
Against the will of Democracy: it has been suggested that by having delegated legislation to
make and/or amend laws etc. it lacks democracy as too much delegated legislation is made by
unelected people. So it Takes legislation away from elected bodies which against the true will of
democracy.
Sub-delegation-Sub-delegation: Sub-delegation occurs whereby law making power is passed
on to civil servants by Government Ministers. Much law made by civil servants, merely rubber-stamped
by ministers. This means that the law making authority is handed down another level. Sub delegation
causes comments that much of our law is made by civil servants and is just ‘rubber stamped’ by the
elected Ministers.
Lack of publicity: Another disadvantage is in the sheer volume of laws that are passed as
delegated legislation. Because of this bulk, there is normally little publicity or knowledge about the
changes that are being made. When law is made by statutory instrument the public are not normally
©VLC Publishers www.vlc.com.pk Page 16
notified of it whereas with Acts of Parliament, on the other hand, they are widely publicised. The
considerable volume of delegated legislation also generates criticism as it makes it difficult to discover
what the present law is. This problem is provoked by a lack of publicity, as much delegated legislation
is made in private in contrast to the public debates of Parliament.
Difficult to interpret: Like statute, can suffer from difficult wording, delegated legislation shares
the same problems with the Acts of Parliament. Unclear wording that can lead to difficulty in
understanding the law. Because different words are used for the same thing and same words are used
for different things.
Delegated legislation examples
- Road Traffic Act 1988 s.17 (1) The Secretary of State may make regulations prescribing (by
reference to shape, construction or any other quality) types of helmet recommended as affording
protection to persons on or in motor cycles ... from injury in the event of accident.
- Local Government Act 1972 s.235 [A District Council] may make bye-laws for the good rule and
government of the whole or any part of the District ... and for the prevention of nuisances therein.
- Courts Act 2003 s.69 (1) There are to be rules of court (to be called "Criminal Procedure Rules")
governing the practice and procedure to be followed in the criminal courts. (2) Criminal Procedure
Rules are to be made by a committee known as the Criminal Procedure Rule Committee.
- Solicitors Act 1974 s.31 (1) The Council [of the Law Society] may, if they think fit, make rules ... for
regulating the professional practice, conduct and discipline of solicitors.
- Church of England (Worship and Doctrine) Measure 1974 s.1 (1) It shall be lawful for the General
Synod to make provision by Canon with respect to worship in the Church of England...
- Railways Act 1993 s.129 (1) an independent railway operator may make bye-laws regulating ... the
conduct of all persons while on [trains or railway property].
- National Trust Act 1907 s.33 The National Trust may in respect of any building forming part of the
Trust property make byelaws.
Case Laws
Boddington V British Transport Police [1998] 2 All ER 203, HL
British Rail (shortly before privatization) made a byelaw under s.67(c) of the Transport Act 1962 as
amended, prohibiting smoking where "no smoking" notices were displayed; they subsequently
introduced a total ban on some trains and displayed notices to this effect. A smoker A defied this
prohibition; he was convicted and fined £10 by the stipendiary magistrate, and his conviction was
upheld on appeal.
R V Wood (1855) 119 ER 400, QB
The Public Health Act 1848 gave power to local health boards to make bye-laws requiring the removal
of "dust, ashes, rubbish, dung and filth" from pavements. D was prosecuted for non-compliance with a
Burslem (town) bye-law that required the removal of snow, but the court said this was ultra vires.
Freshly-fallen snow could be pure, so could not be regarded as "filth" as the board claimed.
©VLC Publishers www.vlc.com.pk Page 17
Attorney-General V Wiltshire United Dairies (1922) 91 LJKB 897, HL
Wartime legislation allowed the Food Controller to regulate the supply of food in such manner as he
thought fit. He made regulations restricting the transportation of milk to those holding a special
licence, for which a fee of £2 per gallon was payable. The House of Lords declared this regulation ultra
vires: it was equivalent to a tax, and no tax can be levied without the express consent of Parliament.
Delegated legislation may also be invalid if it has been made for improper reasons.
R V Somerset CC Ex P Fewings [1995] 3 All ER 20, CA
A local authority voted to ban stag hunting on land which it owned, and officers of the hunt sought
judicial review of this decision. Laws J and the Court of Appeal said the majority of councilors in voting
for the ban had been swayed by irrelevant factors (namely, their belief that hunting was immoral); they
should have considered only whether the proposed measure would be for the benefit or improvement
of the area. The decision should therefore be quashed.
Where the enabling Act set out a particular procedure for making the delegated legislation (for
example by including a requirement to consult) the legislation may be invalid if the proper procedure
was not followed.
Agricultural Training Board V Aylesbury Mushrooms [1972] 1 All ER 280, Donaldson J
Legislation required the Minister to consult relevant bodies before making Orders of a certain type,
and through a clerical error there was no consultation with the Mushroom Growers' Association (who
were conceded to be a "relevant body" for this purpose). The court ruled that the consultation
requirement was mandatory, and that its breach made the Order invalid as far as mushroom growers
were concerned.
Delegated legislation may be invalid if it is excessively vague, or if it is so irrational that no
reasonable person could have made it. This is not a decision to which the courts come very readily,
but in extreme cases it may be appropriate.
Strickland V Hayes [1896] 1 QB 290, DC
Acting under the Local Government Act 1888, Worcestershire CC made it an offence to sing or recite
any profane or obscene song, or to use any profane or obscene language "in any street or public place
or on land adjacent thereto". Quashing A's conviction, the court said this went beyond the scope of the
parent Act (which was concerned with the prevention of annoyance to others) and was consequently
invalid, even though in the instant case A had been speaking on a public footpath surrounded by many
other people.
Kruse V Johnson [1898] 2 QB 91, DC
Kent CC made a byelaw prohibiting any person from singing or playing music in a public place within
fifty yards of a dwelling house, having been asked to stop. An evangelist (A preacher of the Christian
gospel (books)) A conducted an open-air service and sang hymns in the street, in spite of having been
asked not to. The High Court affirmed his conviction: when the court is called on to consider the
validity of bye-laws made by public representative bodies (as opposed to railway companies and the
like), said Lord Russell CJ, they ought to be supported if possible. Obiter, a byelaw could be declared
invalid if it was manifestly unjust or oppressive or disclosed bad faith on the part of its makers.
©VLC Publishers www.vlc.com.pk Page 18
Nash V Finlay (1901) 20 Cox Cc 101, Dc
A woman who used abusive language to another person was convicted by justices under a Stafford
Borough byelaw providing that "no person shall willfully annoy passengers in the streets". The High
Court allowed her appeal on the basis that the bye-law did not give an adequate indication of what
conduct it was meant to prohibit. Lord Alverstone CJ said a bye-law must be at least certain in its scope
and reasonable in its content.
Boddington V British Transport Police [1998] 2 All ER 203, HL
British Rail (shortly before privatization) made a byelaw under s.67(c) of the Transport Act 1962 as
amended, prohibiting smoking where "no smoking" notices were displayed; they subsequently
introduced a total ban on some trains and displayed notices to this effect. A smoker A defied this
prohibition; he was convicted and fined £10 by the stipendiary magistrate, and appealed on the
grounds that the application of the byelaw was irrational and therefore ultra vires. Dismissing his
appeal, Lord Irvine LC said A was entitled to challenge the validity of the bye-laws in criminal
proceedings against him, but a ban on smoking in all railway carriages is a way of regulating the use of
the railway, and British Rail had not exceeded their powers.
R V Secretary Of State for Social Security Ex P B [1996] 4 All ER 385, CA
An asylum-seeker B sought judicial review of Regulations withdrawing all social security benefits from
those who sought asylum after having been admitted to the UK, rather than at the moment of entry.
Reversing the High Court and granting a declaration that the Regulations in question were ultra vires,
notwithstanding their approval by Parliament, Simon Brown and Waite L J said subordinate legislation
must not only remain within the powers granted by the enabling Act, but must be consistent with any
other primary legislation. The Asylum and Immigration Appeals Act 1993 expressly granted asylum
seekers a right to seek asylum (and to appeal against a refusal); Regulations effectively depriving them
of any means of support for months or years would make it impossible for them to exercise that right,
and must consequently be invalid. [The policy contained in the invalid Regulations was subsequently
enacted in statute.]
R (Bono) V Harlow DC [2002] 1 WLR 2475, Richards J
Applicants sought to challenge the decision of the district housing review board that they were not
entitled to housing benefit, and argued that since the board consisted of councilors appointed by DD
they had been denied the right to a hearing before an independent and impartial tribunal. The judge
agreed, and said the relevant Regulations, although themselves authorized by statute were
incompatible with the Human Rights Act. Section 6(2) of the Human Rights Act 1998 applies only where
the primary legislation requires such incompatibility, not where (as here) it merely permits it. It
followed that the Regulations were invalid and the council's compliance with them unlawful. [Note:
The procedures had in fact been changed to provide an independent review, before this case came to
court.]
©VLC Publishers www.vlc.com.pk Page 19
The court will not strike out legislation simply because it thinks the policy behind it was wrong, or
the detailed rules undesirable.
Nottinghamshire CC V Secretary Of State [1986] 1 All ER 199, HL
A local authority sought to overturn the government's limit on their spending and cuts in the rate
support grant. Refusing their claim, Lord Scarman said it would not be constitutionally appropriate,
save in very exceptional circumstances (as for example where the Minister had misled the House, or
both the Minister and the House had misconstrued the enabling statute), for the courts to intervene
on the ground of unreasonableness to quash guidance framed by the Secretary of State and implicitly
approved by the House of Commons. If the House of Commons were supervising the exercise of
Ministerial powers, the courts should stand back.
R (Javed) V Home Secretary [2001] 3 WLR 323, CA
The Home Secretary (Michael Howard) made an Order under delegated powers, in which Pakistan was
designated a "safe country" in which there was in general no serious risk of persecution (on the basis
of race or religion), and to which rejected asylum-seekers might be returned after an accelerated
appeal process. J and other applicants sought judicial review of that decision on the basis that it was
factually wrong. The Court of Appeal said the provisions of Art.3 of the Convention, which guarantee
freedom from torture and inhuman and degrading treatment, made it necessary for the court to
depart from normal practice and examine the merits of the decision. The decision to include Pakistan
could only have been based on an erroneous view of the facts or the law or both: the Home Secretary
was plainly wrong, and a declaration would be granted to this effect.
R V Home Secretary Ex P Anosike [1971] 2 All ER 1405, HC QBD
A 15-year-old Nigerian boy sought certiorari(an order of a superior court directing that a record of
proceedings in a lower court be sent up for review) to quash decisions refusing him admission to the
UK and requiring him to leave, and claimed the right to appeal to an independent adjudicator under
the Immigration Appeals Act 1969. Refusing the order sought, the court said s.24(5) of the Act allowed
the Home Secretary to appoint the day on which each part of the Act came into force, and the
commencement order bringing most of the Act into force had expressly excluded the subsections
giving rights of appeal against refusal of admission and directions for removal.
R V Secretary Of State Ex P Orange (2000) Times 15/11/00, Sullivan J
The Telecommunications Act 1984 limited the circumstances in which licences could be amended, but
the Minister used his general powers under s.2 (2) of the European Communities Act 1972 to repeal
parts of the 1984 Act by Order in Council. The judge said this was unlawful: where delegated powers
are to be used to repeal or amend primary legislation, the Minister must tell Parliament in clear terms
what primary legislation is affected.
Thoburn V Sunderland CC [2002] 4 All ER 156, DC
A greengrocer D was convicted of a weights and measures offence, the relevant amendment to the
Weights and Measures Act 1985 having been made by Order in Council under the European
Communities Act 1972. Laws LJ rejected the argument that Henry VIII clauses cannot be used to make
substantial changes to existing primary legislation: whether or not such changes were desirable was
©VLC Publishers www.vlc.com.pk Page 20
another matter, but in this case the Order giving effect to a European Directive was clearly within the
powers conferred of s.2(2) of the 1972 Act.
Questions for past papers
Q1. Delegated legislation enables the fine tuning of the primary rules to take place, without
encumbering parliament as a whole. (Hilaire Branett: Constitutional and administrative law2002)
[October/ November 2004]
Q2. The use of delegated legislation has both advantages and risks as a means of law –making. Detail
the risks that exist and discuss what safeguards can be taken against them. [May/June 2005]
Q3. Delegated legislation threatens the democratic system and is too high a price to pay for its
contribution as a source of law. Discuss this statement. [October/November 2006]
Q4. There is far too much delegated legislation and too little known about it, evaluate the advantages
and disadvantages of delegated legislation, and consider to what extent you would agree with this
statement. [October/November 2007]
Q5. Explain how delegated legislation comes into existence. What are the advantages and
disadvantages of this form of law-making? [October/November 2008]
Q6. What are the main forms and purposes of delegated legislation? Consider critically the manner in
which it comes into force and the ways in which it can be regulated. [October/November 2009]
Q7. Analyse critically the main ways in which delegated legislation comes into force in England and
Wales. [October/November 2010]
Q8. Analyse critically the purpose, advantages and disadvantages of delegated legislation. [May/June
2011]
Q9. Considering the main types of delegated legislation, would you say that sufficient control is
exercised over its implementation? [October/November 2011]
Q10. Delegated legislation is an essential form of lawmaking, but it brings with it certain disadvantages. Explain the different types of delegated legislation and assess the accuracy of the above statement.
[May/June 2014]
Class Activity
Explanation of what DL is, why it is needed and how it is created.
Understand the need for controls and be able to describe the control processes. List the essential facts
concerning DL.
Understand how this material may be tested in examination.
Students complete a factsheet explanation of each type of DL, why it is needed and the available
controls. This should also include evaluative commentary.
top related