Delegated Legislation

Delegated legislation is law made by some person or body other than parliament, but with the permission of parliament. The authority is laid down in a parent act of parliament, known as an 'enabling act' which creates the structure of the law and then delegates’ powers to others to make more detailed law in the area. A good example of enabling acts includes the access to justice 1999 which gave the Lord Chancellor wide powers to alter various aspects of the legal funding scheme. There are three different types of delegated legislation: these are, orders in council, statutory instruments, and by-laws.

Orders In Council

The Queen and the Privy Council have the authority to make orders in the council. The Privy Council is made up of the prime minister, and other leading members of the government. This type of delegated legislation effectively allows the government to make legislation without going through parliament. Its main use today, is to give legal effect to European directives. However the Privy Council has power to make law in emergency situations under the emergency powers act 1920 and the civil contingencies act 2004, Orders in council will be used to make other types of law. A good example is in 2004 an order in council was used to change the misuse of the drugs act 1971 to make cannabis a class B drug.

Statutory Instruments

Statutory Instruments refers to the rules and regulations made by government ministers. They are given authority to make regulations for areas under their particular responsibility. A good example of what this means is that the Lord Chancellor has power regarding the legal aid schemes, while the minister for transport is able to deal with necessary road traffic regulations. The use of statutory instruments is a major method of law-making as there are about 3,000 statutory instruments brought into force each year.

There are many acts which give a minister of state, power to make delegated legislation. Some examples which I want to mention are the constitutional act 2005, in which section 65 gives the Lord Chancellor the power to issue guidance on the procedure for the judicial appointments commission which recommends who should be appointed as judge. Also within the serious act organised crime and police act 2005 section 27 gives the secretary of state the power to make regulations requiring equipment used by the serious crime agency to satisfy certain levels of design and performance. These examples which I have used show that very different powers can be given to ministers. The legislative and regulatory reform act 2006 gives ministers the power to change acts of parliament even though the original act did not give them power to do this.

By-laws

By-laws can be made by the local authorities to cover matters within their own area for example west Yorkshire county council can pass laws affecting the whole county but a district or a town council can only make bylaws for its district or town. Local bylaws can involve traffic control, such as parking restrictions. By-laws can also be made by public corporations and certain companies for matters within their jurisdiction which involve the public. This means that bodies such as the British airports authority and the railways can enforce rules about public behaviour on their premises. An example of this can be the smoking ban on the London underground system.

The reason why delegated legislation is necessary is entirely because the parliament does not have time to consider and debate every small detail of complex regulations. Also the parliament may not have the necessary technical expertise or knowledge required, for example health and safety regulations in different industries need expert knowledge on the other hand local parking regulations need local knowledge. Modern society has become very complicated and technical so that it is impossible for members of parliament to have all the knowledge which is required to draw up laws on controlling technology or ensuring environment safety. It is better for the parliament to debate the main principles thoroughly but leave the detail to be filled in by those who have expert knowledge of it.

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 workable. Some acts giving the power to make delegated legislation set out that there must be consultation before the regulations are created. Another advantage that delegated legislation has is that the process of passing an act of parliament can take a long time even in an emergency as for delegated legislation can be passed on very quickly and it can be amended and revoked easily when necessary so the law can be kept up-to date and ministers can respond to new or unforeseen situations by amending statutory instrument.

Delegated legislation can be made by non-elected bodies and since there are so many people with the power to make delegated legislation the parliament and judiciary have control. Parliament initially has the control with enabling an act which sets the boundaries, within which delegated legislation is to be made. Furthermore a delegated power scrutiny committee was established in 1993 in the House of Lords to consider whether the provisions of any bills delegated legislative power inappropriately. It reports its findings to the House of Lords before the committee stage of the bill but has no power to amend bills. The main problem here is that there is no general provision that the regulations made under the enabling act of have to be laid before parliament for the MP’s to consider them. A small number of statutory instruments will be subject to an affirmative resolution this means that the statutory instrument will not become law unless specifically approved by parliament. The need for an affirmative resolution has to be included before enabling an act. Most other statutory instruments will be subject to negative resolution which means that the relevant statutory instrument will be law unless rejected by the parliament within 40days. Individual ministers can also be questioned about MP’s in parliament on the work of their departments and this can include questions about proposed regulations.

A more effective check is the joint select committee on statutory instruments called the scrutiny committee. This committee reviews all statutory instruments and where necessary will draw the attention of both house of parliament to points that need further consideration. However the review is a technical one and not based on policy. The main grounds for referring a statutory instrument back to the house of parliaments are that it imposes a tax or charge, (this is because only an elected body has such rights) it is unclear or defective in some way, it appears to have gone beyond the powers given under the enabling legislation or it make some unusual or unexpected use of those powers, and if it appears to have retrospective effect which was not provided for by the enabling act. The scrutiny committee can only report back its findings it has no power to alter any statutory instruments

Delegated legislation can be controlled and challenged in the courts on the ground that it is ultra vires basically what this means is that if it goes beyond the powers of which the parliament has granted in the enabling act . Any delegated legislation which is rule to be ultra vires is void and not effective this was shown in the case of R v Home Secretary ex parte fire brigades union (1995) where changes made by the home secretary to the criminal injuries compensation scheme were held to have gone beyond the power given to him in the criminal act justice act (1988). Delegated legislation can be illustrated strict land v Hayes borough council 1896 where a by law prohibiting the signing or reciting of any obscene song or ballad and the use of obscene language was held to be unreasonable and so ultra vires because it was too widely drawn in that it covered acts done in private as well as those in public, also the other case where delegated legislation has taken place are the cases of Aylesbury mushroom case 1972.

The criticism of use of delegated legislation is that it takes law making away from democratically elected House of Commons and allows non-elected people to make the law. This is acceptable provided there is sufficient control but as seen parliaments control is limited. This criticism cannot be made of bylaws made by local authorities since these are elected by local citizens. Another problem is that of sub-delegation which basically means that the law making authority is handed down another level. This raises questions that our law is made by civil servants and it is merely stamped by the minister department. The other main problem with delegated legislation is that it is difficult to discover what the present law is as large volume of delegated legislations can be made and lack of publicity is another issue because majority of delegated legislation is made in private in contrast of public debates of parliament. The final issue about delegated legislation and acts of parliament is that obscure wording which can lead to difficulty in understanding the law.

Overall in my conclusion delegated legislation is made by bodies other than parliament but with the authority of parliament and there are three main bodies of delegated legislation, which are order in council, statutory instruments, and by-laws. The reason why delegated legislation is present is because of the knowledge and expertise, it saves the parliament’s time and it is more flexible than acts of parliament. The disadvantages of delegated legislation are that it is undemocratic it has the risk of sub-delegation also it can be made in large volumes and lacks publicity. Delegated legislation is controlled by the parliament and by the courts as the parliament have the stages of affirmative, negative resolutions and then the scrutiny committee to deal with it however the courts have the judicial review and the doctrine of ultra vires.

Parliament Sovereignty

Parliamentary law is sovereign over other forms of law in England and Wales. This means that an Act of parliament can completely overrule any custom, judicial precedent delegated legislation and or previous acts of parliament. The concept of sovereignty of parliamentary law is based on democratic law making via the voting system. However the ideal concept of democracy is lost because much of the drafting of parliament is done by civil servants who are not elected. Another issue which rises is that the house of lords is not an elected body. Dicey made three points of definition of parliamentary supremacy which are that the parliament can legislate on any subject-matter, no parliament can be bound by any previous parliament, nor can parliament press any act that will bind a later parliament and finally no other body has the right to override or set-aside an Act of parliament. Limitations of parliament sovereignty have been self-imposed by previous parliament the main limitations of parliament is the membership of the European Union and the effects of the human rights act 1998. Overall Parliamentary Sovereignty can make and cancel any law with legal official permission to do so in this country which is a very big advantage as there are many types of laws made by different types of bodies and for parliament to have this power it shows order and one law which governs the country also it is vital that parliament can pass down laws which future parliament can amend. Overall in my opinion delegated legislation isn’t a threat to parliament as I have mentioned earlier that the parliament can overrule any law which includes delegated legislation but there are limitations which are the European Union and human rights Acts which the parliament have self imposed.

There are various methods that judges use to interpret law but there are three main rules which the judges use these are the literal rule, the golden rule, and the mischief rule.