The Legislative Process(2): Delegated Legislation

8.1 Introduction
[Link] Legislation also called ‘subordinate’ and ‘secondary’ legislation.
[Link] DL, government makes legislation on a large scale with only minimal
parliamentary involvement. *fill in detail in relation to a framework Act
[Link] : is the use of DL is compatible with the doctrine of SoP and under the principle
that it is Parliament which is the only lawmaker?
8.2 Nature of DL
1. Two types of DL. The vast majority of DL is made in the form of ‘statutory instruments’, a
form of law that is regulated by the Statutory Instruments Act 1946. The 1946 Act sets out
the various types of parliamentary procedure that apply when a minister decides to make a
Statutory instrument.
2. Another type of DL is an Order in Council. It has the extra formality of being approved at
one of the monthly meetings of the Privy Council (a very short meeting with the Queen and
a small group of senior ministers at which legislation is passed through without any debate).
An enabling provision in a Parent Act will normally specify that the SI in the form of an Order
in Council when something of considerable importance is at stake. [Order in Council also a
type of SI]
*Parent Act(statute) -In order for P to delegate power to the executive or other body, a
Parent Act must be passed. Then, the other body (E) could make the detail rules or laws or
make changes to the law.
*By-laws, and sometimes Ordinances are made by a local government authority and apply
to the people leave in that area only
3. In some situations, DL is used to give legal authority to a policy. DL receive less scrutiny
from Parliament than normal Bills. [It suggests that primary legislation is the appropriate
way to give legal backing and legal effect to the Gov. policy]
4. According to [Link], in ‘Legislation, types of’, the common justifications for
secondary legislation are that delegations of rule-making are necessary and useful because:
a) Parliament does not have the time or detailed knowledge to make specialist bodies of
rules
b) some subjects are too technical to justify parliamentary attention
c) secondary rules are more flexible and responsive than statutes
d) delegations of rule-making power allow adjustments and updating or amending exercises
to be carried out efficiently
[Link] further states that much modern legislation is carried out by means of ‘framework’
items of primary legislation [framework bills], which confer minister the powers to issue
secondary legislation in order to fill in the detailed rules.
8.3 The Justification for Delegated Legislation and Critical Views (critics)
1. Many Acts of Parliament set out only a general ‘framework’ or ‘skeleton’, for the policies
sought to be achieved, delegating matters of detail to the government to be made by DL.
2. In 1992, the Hansard Society carried out an inquiry into law-making, and received
submissions from many organizations and individuals. Several people and bodies favoured
the substantive provision of statute law should be dealt with in AoP, with only less
important details being left to the DL, or were unhappy about the extensive use of DL.
3. According the Hansard Society, the reasons for this critical view of the use of DL were
numerous. They included :
a) objection to “skeleton bills” ; the use of delegated powers to determine the
principle rather than the detailed implementation of legislation. [the main principle
or provision of the Act should be dealt with in the AoP , the DL should only set out
the detailed rules or implementation of legislation]
b) the increased power is given to Ministers ; the lack of Parliamentary time for
scrutiny of delegated legislation
c) the difficulty of campaigning against bills that include extensive delegation of
powers and against draft order
d) the fact that SI cannot be amended (SI generally cannot be amended or adapted
by either House unless the Parent Acts provides)
e) the uncertainty of leaving things to regulations and waiting for them to be made
f) the difficulty of discovering the law on any matter if It is buried in a number of SIs
4. The Hansard Society also found that there were others who believed that only the policy
elements and other major provisions of legislation need be included in bills, or saw some
advantages in leaving more detail to DL. The main arguments advanced in favour of greater
use of DL were:
a) the advantage of keeping primary legislation uncluttered
b) the fact that DL is not subject to the same constraints of the parliamentary time
table as is PL and that therefore there can be more time for consultation.
c) the greater flexibility it permits (because it does not involve the passing of a bill
through Parliament) in updating the law to match changed circumstances and in
correcting or amending it
5. The Hansard Society concluded there was merit in keeping Bills as clear, simple and short
as possible. This can make Acts easier for the user to follow, and it will help Parliament to
focus on the essential points [ no need to waste time on vague or useless point], and on
policy and principle, in its debates on bills. Above it found advantages for the Gov. and for
those affected by legislation in keeping the legislative process flexible so that Statute law
can be kept as up-to-date as possible. The parliamentary time is not so sufficient, so
changes to the Acts might need to wait several years before a bill can be introduced. It is
much easier to bring in amending statutory instruments with less delay. Less rigidity in
procedures and timing should also facilitate improved consultation.
6. The Hansard Society also recognised that there is some disadvantage of extensive use of
DL, but suggested that many of them could be overcome. It welcomed the setting up by the
HL, the Delegated Powers Scrutiny Committee, which their first task is to consider to
ground rules and criteria on what matters can be left to DL.
7. The Hansard Society also emphasised that an Act should never bare of everything except
for a Framework Act, which all real substance being left to ministerial regulations. Normally,
the main principles of the legislation provisions should appear in the Act itself, the main
provision of the statute law should be set out in the Act of Parliament, but the detailed rules
can be left to DL.
8. The use of DL is usually for the purpose of:
a) bringing section of Acts into force [The minister/SOS will decide when the Acts
came into force]
b) filling in a Framework Act passed by the HP
c) implementing European Union Law [formerly under s2(2) ECA1972]
9. DL can be used to amend or repeal an Acts of Parliament in order to remove some
incompatibility in the Act passed by the HP. Enabling provision in a Parent Act that confer
this surprising power on ministers have been dubbed ‘Henry VIII’ clauses. Henry VIII powers
contained in Acts of Parliament giving ministers powers to suspend parliamentary legislation
such as were enjoyed by the Tudor King. The reason that P give ministers these powers are
that they could reform the act without the need to trouble P with a Bill. And some minor
problems come to light after an Act has received RA.
10. In 1997, the HL established a select committed – now known as the Delegated Powers
and Regulatory Reform Committee to monitor the inclusion of this Henry VIII powers in
Bills. The committee reports any concerns to the HL, so that peers may seek to amend the
Bill to remove or limit that power if the agree to do so.
8.4 Civil Servants And Ministers Making Delegated Legislation
1. Sometimes a minister in the relevant department must sign the text of a DL produced by
civil servant and government lawyers . The minister may either a junior minister or the
Secretary of State.
2. Q : is the ministerial signature just a rubber stamp for things done by officials? Or the
Minister will know the subject matter of the draft SI before he put down his signature?
3. R(on the application of National Association of Health Stores) v Secretary of State for
Health 2005
-This is a JR challenge to an SI made under the Medicines Act 1968 prohibiting the
sale for medicinal purposes of a drug called kava-kava, widely used herbal
tranquilizer and other made under the Food and Safety Act 1990 banning use of its
foodstuffs.
-Sedley LJ essentially stated that the minister who reserve a decision to himself or a
civil servant who is authorized by him to take decision must know or be told enough
to ensure that nothing that it is necessary for him to know is left out of account. For
example, the Commission should formulate its advice and then distilled within the
department in order to make a submission to the minister which would tell him what
it was relevant for him to know. What it was relevant for the minister to know was
enough to enable him to make an informed judgement. This centrally included the
Commission’s advice.
- CA dismissed the National Association’s appeal.
8.5 Parliament’s Role In Delegated Legislation
1. One of the rationales for DL is that it relives Parliament of some of the burden of
legislating. The draft Sis receive far less scrutiny than bills. Some SIs, of making
commencement orders bringing sections of an Act into force, are subject to no
parliamentary procedure at all. Other draft SIs, are subject to a range of oversight
mechanisms depending on the importance of the subject matter.
2. Generally, an SI cannot be amended or adapted by either House [unless the Parent Act
provides that]. Each house could only simply express its wish for them to be annulled or
passed into law as the case may be.
3. The minister in charge will sign the SI and lay it before the Parliament under a draft order.
a) The negative procedure: Some SIs become law on the date stated on them but will
be annulled if either House (or the HC if it deals with an financial matter) passes a
motion for their annulment within a specified time. This is usually 40 days including
the day on which it was laid. In the HC, any member may put down a motion to
annul a SI subject to the negative procedure.
[around 75% of secondary legislation is usually made using the negative procedure.
Under this procedure, most instruments are signed by the relevant minister and then
laid before Parliament. It will become law unless it is annulled within a set period]
[NP means that P is not require to approve the SI for it to become law]
b) The affirmative procedure: This provides for more stringent parliamentary control
since the instrument must receive Parliamentary approval before it comes into force
or remain in force. Most SI made using this procedure are laid in the form of a draft
order. Such orders cannot be made unless the draft order is approved by both HP.
4. SI may be subject to scrutiny by select committee – committee of backbench of MPs or
Lords (or both a joint committee) . Most members of the committee have no legal expertise
or training, but each committee carries out its work with the assistance of a lawyer on the
parliamentary staff. The committee takes no view on the merits of the policy contained in
the SI, but will consider whether such SI complied with technical requirements as outlined in
the Standing Orders of each House.
7. The Delegated Powers Scrutiny Committee
8. The Delegated Powers and Regulatory Reform Scrutiny
8.6 Role Of The Courts
1. R (on the application of National Association of Health Stores) v Secretary of State for
Health
2. In the case of R (on the Application of Javed) v Secretary of State for Home Department
[2001], the Court of Appeal had to consider whether the Asylum (Designated Countries of
destination and designated Safe Countries) Order 1996 (an SI) had been made lawfully by
the Home Secretary.
- The Order had been debated and approved by both Houses of parliament. The Order
sought to give effect to policy that certain countries should be designated as generally free
from persecution, so enabling an expedited process to be used for returning failed asylum
seekers to the countries they originally came from as the UN authorities could assume that
people returned would not be subject to mistreatment. The claimants submitted that the
Home Secretary had acted unlawfully in placing Pakistan on the ‘white list’. One of the
claimants was a member of the Ahmadi community, a religious minority in Pakistan.
- The House of Lords held that the Home Secretary could not have concluded on the
evidence, that women were not at risk from persecution in Pakistan. The same was true in
relation to Ahmadis. Accordingly, the Home Secretary’s inclusion of Pakistan on the ‘white
list’ was held to be irrational and the order (SI) in relation to Pakistan was quashed.
3. In Ahmed and Ors v HM Treasury (JUSTICE intervening) (Nos 1 and 2) [2010] , the UK
Supreme Court had to review the lawfulness of two pieces of delegated legislation that were
designed to freeze the assets of suspected terrorists.
- The enabling provision relied upon was section 1 of the United Nations Act 1946, which
stated that if the UN Security Council called upon the UK to implement measures, his
Majesty may by Order in Council make such provision. The names of three claimants
appeared on the list drawn up by the UN as people being involved in terrorism. The UK
government then designated them as persons whose assets would be frozen under the
orders. At no point was there any procedure in place for the claimants to challenge the UN
or the government’s determination, in clear contravention of basic principles of procedural
fairness.
- The Supreme Court held that the orders were ultra vires as they fell outside the scope of
the 1946 Act; the enabling provision was not sufficiently wide to permit ministers to
interfere with fundamental rights to fair process.
- In response to the ruling, the government fast-tracked a Bill through Parliament, which
became the Terrorist Asset-Freezing (Temporary Provisions) Act 2010; this was
subsequently replaced by the Terrorist Asset-Freezing etc. Act 2010. Using primary
legislation, the government now has power to implement UN Security Council measures on
asset freezing. The primary legislation includes a right of appeal for the designated person.