What is meant by Delegated Legislation?

ASSIGNMENT A

2. (a) What is meant by Delegated Legislation?

Delegated legislation is power conferred by a supreme legislative authority to a subordinate authority to create laws. In the United Kingdom, the supreme authority is Parliament and the subordinate authorities range from government ministers to local councils and also non-governmental organisations. It must be noted that although power is passed downwards, Parliament still remains responsible for any legislation created by other authorities.

Delegated legislation can take several forms, depending upon which authority is being empowered to make new legislation. The most important form of delegated legislation is the creation of Statutory Instruments or ‘ministerial regulations’. Power is given to a government department by a Parent Act to create new laws, otherwise known as Statutory Instruments. The Parent or ‘Enabling’ Act gives specific guidelines on how the new laws are to be created. If these guidelines are not adhered to then any Statutory Instruments created are subject to challenge or even annulment, as will be demonstrated later in this essay.

Statutory Instruments are just as much the law of the land as an Act of Parliament. They could cover changes to safety law by the Health and Safety Executive, for example, or the changing of speed limits by the Department of Transport. Other examples of Statutory Instruments include the Child Support Bill (1991) and the Education (Student Loans) Bills (1990). However, they are unlike an Act of Parliament in that they are subject to challenge and control.

There are two ways for a Statutory Instrument to become law. Firstly, by a negative resolution procedure, where the instrument becomes ...

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There are two ways for a Statutory Instrument to become law. Firstly, by a negative resolution procedure, where the instrument becomes law without a debate or vote but may be opposed or ‘prayed against’ by a Member of either House within a specific time limit of 40 days. If a motion to annul is passed within that time period, then the instrument will not become law. However, if there are no objections to the instrument, then it will become law after that time period.

A Statutory Instrument may also become law by an affirmative resolution procedure if it contains controversial proposals. Such instruments cannot become law unless approved. These instruments require the express approval of Parliament; they must be debated and voted upon to decide whether the instrument can become law.

Either way, Parliament cannot amend the Statutory Instrument once it has been drafted – it can only approve or disapprove the Instrument.

Apart from Statutory Instruments, there are two other main forms of delegated legislation. These are firstly by-laws and secondly Orders in Council. By-laws are laws created by a local authority or by a public corporation. Most local by-laws are passed under the Local Government (Miscellaneous Provisions) Act 1982 or the Local Government Act 1972.

An example of a local authority by-law is the car ban in the City Centre introduced by Nottingham City Council. As for public corporations, which are given statutory authority, they could range from a no-smoking policy in trains under the Railways Act 2005 to rules about the election of shareholders in a company under the Companies Act 2006.

Unlike Statutory Instruments, by-laws are not subject to direct Parliamentary control. However, they must be approved by the relevant Minister to become law.

Orders in Council are laws passed in an emergency in the absence of Parliament. This happens very rarely, however there are several examples in recent times. These include the foot and mouth crises and the fuel protests. Decisions were made by the Privy Council and the Queen in order for immediate action to be taken to resolve the crisis. Soon after, the matter was debated in Parliament as well. The Emergency Powers Act 1920 conferred power on the Council to make these Orders.

European regulations are technically a form of delegated legislation as well, since Parliament has given the European Commission power to create law applicable to the United Kingdom. This power was conferred by the European Communities Act 1972, a form of Enabling Act as mentioned above.

Delegated legislation also includes tenancy agreements, Church of England measures and Rules of Court, made by the rules committees.

All delegated legislation must be carefully monitored, since at the end of the day, Parliament remains responsible for the laws created by the subordinate authorities. Each form of delegated legislation is subject to judicial review. This means that interested parties can take a case to the Queen’s Bench Division of the High Court to decide whether a piece of delegated legislation is valid or not.

If the legislation is dismissed as not valid, it will either be on the grounds of procedural ultra vires or substantive ultra vires. In the first instance, the method of creating the legislation is alleged to be invalid. See for example THE AYLESBURY MUSHROOMS CASE [1972]. In the second instance, the content of the legislation is found to be invalid. In Staden v. Tarjanyi 1980, a local by-law making it illegal to fly a glider ‘in the pleasure ground’ was condemned as substantively ultra vires because the content was found to be uncertain – it was debatable whether the law meant ‘in’ or ‘over’ the pleasure ground.

It must be stressed that although Parliament has delegated power to other authorities, the responsibility for the laws these authorities create still remains with Parliament. Therefore Parliament is keen to monitor all delegated legislation since it would have to take the blame should any problems arise. Despite this constant supervision, however, the system is still far from perfect and many intelligent people object to the perhaps excessive and confusing volume of delegated legislation which exists in this country.

TMA (A) Rebecca Milburn Page