An advantage of delegated legislation for the user is that (unlike statutes) judicial review may be sought, although only by 'interested' parties (i.e. persons directly affected by the legislation).
The Committee on Minister's Powers (1932) said that "whether good or bad", delegated legislation is inevitable, and, in the opinion of one of its members that it was "a necessary evil, inevitable, ... but nevertheless a tendency to be watched with misgiving."
They are made because:
- of limits on time in Parliament;
- they allow rapid change; and because
- MPs lack detailed or technical knowledge.
The lack of parliamentary control on statutory instruments is what makes them good - time is saved. The ideal for an overburdened , but concerned Parliament is negative control on all statutory instruments, since the ability exists to stop them but time is not wasted considering them all.
TYPES OF DELEGATED LEGISLATION
Statutory Instruments
Stautory Instruments are made by Ministers under the authority of a enabling Act.
Some statutes have included 'Henry VIII clauses', which allow primary legislation to be amended or repealed by secondary legislation without parliamentary scrutiny; e.g. the Criminal Justice Bill 1990, which allowed criminal offences to be added or removed by instrument. Other Henry VIII bills include the Child Support (1991), and Education (Student Loans) (1990) Bills.
About 1800 statutory instruments a year (and rising) are brought before Parliament.
One suggestion proposed for the scrutiny of delegated legislation is the adoption of an American-style consultative system, where proposed delegated legislation must be published, generally provoking many responses, with a governmental obligation to reply.
There is a requirement (under the Statutory Instruments Act 1946) for statutory instruments to be printed and sold as soon as possible unless they are local, temporary, or sensitive and not yet in operation, and printing would be inexpedient. In R. v. Sheer Metalcraft Ltd. 1954, it was held that a statutory instrument was valid despite incomplete (cf. above) compliance with the publication requirements.
Judicial Control
Statutory instruments can be held substantively (if the statutory instrument exceeds the powers or area expressly or implicitly statutorily authorised) or procedurally (incorrectly passed) ultra vires on judicial review.
Substantive ultra vires
Common law rules provide that statutory instruments are substantively ultra vires if they impose a tax, interfere with the basic rights of subject (freedom of speech etc.), or allow subdelegation of powers, without express statutory authority.
Procedural ultra vires
Instruments will be held to be ultra vires if a mandatory procedural requirement has not been followed, but will not be if the procedure is only directory.
The duty to consult is mandatory (Agricultural Training Board v. Aylesbury Mushrooms Ltd. 1972) (providing the statute stated that there must be consultation - there is no requirement otherwise). However, there is no requirement to do any more than ask for the consulted parties views - they can be ignored.
The duty to lay before Parliament is directory (Bailey v. Williamson 1873)
The duty to publish is directory (R. v. Sheer Metalcraft Ltd. 1954)
An unfair consultation process can lead to the instrument being quashed, as in R. v. Secretary of State for Health, ex parte U. S. Tobacco International Inc. 1992, where a ban on oral snuff was held illegal as during the consultation process the company were not given the scientific grounds on which the ban was made.
Parliamentary control
Rejection of a statutory instrument, although more unlikely than with Acts, will be fatal (since statutory instruments cannot be amended), and the Lords are not constrained by the Parliament Acts.
Statutory instruments may be subject to 3 types of parliamentary control (controls are specified under the enabling Act):
Negative resolution (annulment)
This acquiescent control means that if the instrument is not rejected by a motion of either House within the statute-specified time (almost always 40 days) it will become law. Having instruments on annulment is the most common form of control, with all EU statutory instruments so passed. About 1000 instruments are passed on annulment each year.
No negative motions have been carried since October 1979, with around 7 negative resolution statutory instruments debated in the whole House, and 15 in Committee per session - meaning that less than 2% of such statutory instruments are considered at all.
Positive resolution
Instruments thus passed do not become law unless voted for by both houses of Parliament (about 150-200 instruments per year are passed on positive resolution), and some must be passed within a statutory time limit. Most instruments are only required to be laid before Parliament in draft (since Parliament does not amend statutory instruments, scrutiny prior to promulgation allows drafting errors to be corrected) and are considered in standing committee (about 1/3 of such committees are carried out on the floor of House, with no instruments defeated since July 1978).
Information only
The main instruments thus passed are commencement orders and local legislation.
The only requirement is for Parliament to have a copy of the instrument laid before it. About 1 in 10 of all statutory instruments (that is about 150 per year) are passed under this 'control'. Having statutory instruments on this form of scrutiny is little more than symbolic of the Parliament's supremacy, although the informing of Parliament does allow wildly discrepant (with that which appears to be statutorily appropiate) instruments to be rectified.
Scrutiny
Statutory Instruments are considered by the 14 member Joint Committee on Statutory Instruments, which decides if a Statutory Instrument is ultra vires the statute as well as considering which control should be written into a statute.
It should be noted that the Committee has no formal power - votes against Statutory Instruments in committee have no legal effect; and also that it is a technical committee rather than one concerned with merit. Reports of the Joint Committee can be ignored.
It is required to draw Parliament's attention to instruments that:
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impose a charge on the public purse or require payment to be made to any executive body or set the charge for such a payment, or
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exclude challenge in the courts, or
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have retrospective effect without express statutory authority, or
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have been unduly delayed in publication or laying before Parliament, or
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have come into operation before being laid before Parliament, where there is undue delay in informing the Speaker of the fact, or
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may be ultra vires, or
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are unclear, or
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are defective in drafting, or
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any other reason excluding "its merits or on the policy behind it".
There is also the 2 Standing Committees on Statutory Instruments, set up in 1973, and composed of 17 voting members, with all members (of Parliament) eligible to speak.
Statutory instruments are only referred thereto when a minister moves to do so. If a minister does do so, then the motion will succeed unless 20 members object.
In addition to the Committee scrutiny, one other important opportunity for scrutiny is during the normal consideration of Bills, since the potential instrument is often obvious, or at least the amount of power that is being granted.
One problem with the scrutiny of delegated legislation is that there is no guarantee of the government or opposition providing time for debate, and even when there is debate it is likely to be attended by very few members late at night.
Also scrutinising statutory instruments are the Commons Select Committee on European Secondary Legislation, and the Lords Select Committee on the European Committees. These committees bring to the attention of Parliament the more important pieces of European legislation (made under the European Communities Act 1972 s. 2(2), which allows Orders in Council to be made under the Royal Prerogative, or statutory instruments implementing EU obligations).
The Committees have been relatively successful in improving drafting, but the Hansard Society Commission still believes that the "whole approach of Parliament [is] ... highly unsatisfactory."
The Delegated Powers Select Committee scrutinises Bills for inappropriate grant of power or legislation with inappropriate delegation (a Lords committee only), there have been no skeleton Bills since it was set up.
The Commons Deregulation Committee and the Lords Select Committee on the Scrutiny of Delegated Powers consider delegated legislation made under the Deregulation and Contracting Out Act 1994, which allowed the repeal of primary legislation by delegated legislation. Such legislation is designed to remove 'red tape'.
Orders in Council
Orders in Council, passed by the Privy Council, can be held to be ultra vires if passed under statutory authority, but if passed under the Royal Prerogative are de facto valid.
Orders are usually laid in draft before Parliament, and have the same kinds of controls on them as do other types of statutory instrument.
By-laws
Control
By-laws can be annulled by the Home Office, however this is unlikely since most by-laws are based on Home Office guidelines. Although they are subject to no direct parliamentary control, they will not take effect unless approved by the relevant minister.
By-laws may be quashed on the grounds that they are ultra vires; inconsistency with statute law, which by-laws can never amend; uncertainty; or unreasonableness.
An example of a by-law quashed for uncertainty was in Staden v. Tarjanyi 1980, where a by-law making it illegal to fly a glider "in the pleasure ground" was held uncertain because it was held that it must mean in or over, but for it to mean this, there must be "some lower level below which the glider must not fly."
In Kruse v. Johnson 1898, the meaning of unreasonableness was set down. It was said by Lord Russell that by-laws should be "benevolently" construed. A by-law would be unreasonable "for instance, [if] they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.' A by-law is not unreasonable merely because judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there."
Unlawful parts of orders may be severed.
Publication
Notice must be given a month before publication in local press, and a copy must be available for public inspection. They must be available for public inspection at the local authority office, and for sale for a sum not exceeding 20p; but these obligations are frequently flouted.
By-laws are generally passed under the authority of the Local Government (Miscellaneous Provisions) Act 1982 or the Local Government Act 1972.
Challenge to the validity of delegated legislation
Judicial review is the only process by which delegated legislation may be challenged. Although called review, this nomenclature is somewhat misleading, since the process is at best a scatter-gun approach, relying on a well-heeled challenger noticing the defects of legislation, something that is not easy to do. Thus for every piece of delegated legislation that is challenged it is likely that a dozen more invalid laws survive. However, the process is highly effective once the delegated legislation has been challenged.
As to the challenge of codes of practice, guidelines, etc., which have no legal status, but can still have a major impact on the running of the country, as with, for example, the Police and Criminal Act Codes of Practice, the position is uncertain, but it seems that the more specific the guidelines, (especially where statute obligates the documents' production) the more likely that judicial review will take place.
There are two methods of challenge: as a defence to an action, or by direct challenge
