Chapter 3 Delegated Legislation
3.1 Types of Delegated Legislation
1. Orders in Council
- Powers delegated to: The Queen and Privy Council (PM, leading members of
government)
- Allow the government to make law without having to debate and vote on in
Parliament.
- Matters:
1. Transferring responsibility between government departments
2. Bringing Acts of Parliament in to force
3. Making law in emergencies under the Civil Contingencies Act 2004
2. Statutory Instruments
- Powers delegated to: Government ministers
- Each department deals with a different area of policy
- The minister in charge have to make rules and regulation respect to the
matters it deals with
- Short and covering one point (e.g. annual change to the minimum wage)
- Long with detailed regulations that were complex in Act of Parliament
- The Chemicals (Hazard Information and Packaging Supply)
Regulations 2009
3. Bylaws
- Powers delegated to:
- Local Authorities - Cover matters within their own area
- Public Corporations and certain companies - Covers matters within
their jurisdiction that involve public
3.2 The Legislative and Regulatory Reform Act 2006
- Powers are delegated to government minister to make any provision by order
- To remove Parliament ‘burden’
- Financial Cost
- Administrative inconvenience
- Obstacle to efficiency, productivity or profitability
- A sanction that affects the carrying on of any lawful activity
- Procedure of making statutory instrument
1. Consult various people and organisation (interested parties, Wales
Parliament, Law Commission)
2. Must be laid before Parliament (negative, affirmative or super-affirmative
resolution)
3. Minister must regard to any representations, resolution or recommendation
3.3 Parliamentary controls on delegated legislation
1. Parliament retains control over the delegated legislation
2. It can repeal the powers in the enabling Act at any time
3. Parliament has the following ways of checking the actual delegated legislation:
● Pre-drafting consultation
○ Before publication, the government department can consult with all
interested parties
○ Take their views into account when drafting regulations - not bounding
● Review by Scrutiny Committee
○ Review all statutory instruments
○ Technical and not based on policy
○ Where necessary, will draw the attention of both Houses of Parliament
to points that need further consideration
○ Has to report back its findings and has no power to alter any statutory
instrument
● Affirmative resolutions
○ The statutory instrument will not become law unless specially
approved by Parliament
○ Disadvantages: Parliament cannot amend the statutory instrument, it
can only be approved, annulled or withdrawn by the government
minister (ineffective)
● Negative resolutions
○ The statutory instrument will be law unless rejected by Parliament
within 40 days
○ Problems: Very few will be looked at in the Parliament
● Questioning
○ Individual ministers may be questioned by MPs in Parliament
○ Question about proposed regulation
3.4 Court Control
- Statutory instrument can be challenged in court on the grounds that is ultra vires
Judicial Review and locus standi
- Judicial review can only be taken by person or body with interest to the proceeding
(have locus standi)
- Taken in Queen’s Bench of the High Court
- The delegated legislation that is ruled to be ultra vires is void and not effective
1. Procedural Ultra vires
- Any piece of delegated legislation made without following the correct
procedure
- Aylesbury Mushrooms Case - Minister failed to consult the Mushroom
Growers’ Association and caused a bad impact to mushroom growers.
2. Substantive Ultra Vires
- Any delegated legislation which its content is not within the limits specified in
the parent Act
- Secretary of State for Education ex parte NUT (2000) - beyond the powers in
the Education Act 1996 and the procedure used was unfair
- ‘Wednesbury Unreasonable’
- An irrational and unreasonable piece of delegated legislation or decision
made by public body can be declared as ‘Wednesbury Unreasonable’
following the decision in Associated Provincial Picture Houses v Wednesbury
Corporation (1948)
- Delegated legislation has no powers to do the following unless an enabling
Act expressly allows it.
- Make unreasonable regulations - Strickland v Hayes Borough Council
(1896) - bylaws prohibiting singing of obscene songs were held to be
unreasonable.
- Levy taxes
- Allow sub-delegation (further delegate powers without parliament
permission)
Advantages Disadvantages
Time-saving - quicker to pass and amend Allow non-elected people to make law -
away from democracy
MPs focus on wider issues Sub-delegation - law-making authority is
handed down another level - unelected civil
servant make law - ‘rubber-stamped’ by
minister
Speed – quick response in an emergency Difficult to discover what is the parent law
Expertise - technical expertise or local Difficult to understand - contain obscure
knowledge for detail of laws (relevant and wording
workable law)
Flexibility - DL easily amended or revoked
Parliamentary and judicial control - avoid
abuse of power