Orders in council- These are enacted under powers delegated to the Privy Council. Orders in council are used in emergency situations, usually when parliament is not sitting. In 2001 the government issued orders in council empowering highway authorities to close public rights of way to help prevent the spread of foot and mouth disease. The order amended the foot and mouth disease order 1983
Orders in council are also used when statutory instruments would not be appropriate, for example when transferring responsibilities between government departments. For instance, orders in council were used to transfer the powers of ministers of the UK government to those devolved assemblies.
Statutory instruments- are made by individual ministers within some limited sphere relating to their department responsibilities. They are known by this name because they are instruments through which the statue is brought into force.
Statutory instruments are the most common form of delegated legislation. They are cited in the following way; S.I. 1972, NO 1 etc.
Thus the family provision (Intestate Succession) order 1972 made by the lord chancellor under the family provision act 1966 on 21st June 1972 may be citied as S>I 1972, NO 916th statutory instrument made in the year 1972
By-Laws- Delegated legislation also includes the by-laws of local authorities and other bodies empowered to make them.
Local authorities are given powers by many acts of parliament to make by-laws. The by-laws only apply within their own geographical areas. Many such by-laws relate to traffic controls.
Some public bodies and companies are also able to make by-laws. These include railway companies and the London underground.
Control of delegated legislation
Control may take just two forms; by parliament and by the courts (judicial control).
Parliament keeps a watchful eye on delegated legislation by imposing conditions upon its passing, such as consultation with various interested parties; publications by either the affirmative resolution procedure(whereby the enabling act may require parliaments express approval before a piece of delegated legislation becomes law0 or by negative resolution (whereby an M>P can call for a motion to annual a piece of legislation within the specified time, usually 40 days); supervision by parliament committees & questions by M.P's
The courts cannot challenge the validity of an act of parliament, but can challenge a piece of delegated legislation on the grounds of:
1. Procedural ultra Vires; where it is alleged that the procedure for making that piece of D.L has not been followed to the letter; see THE AYLESBURY MUSHROOMS CASE [1972]
2. Substantive Ultra Vires; where it is claimed that the piece of D.L. under scrutiny has gone “beyond the powers” allotted it by the enabling act see ATT-GEN. V FULHAM CORPORATION [1921];
3. Unreasonableness- i.e. if the piece of delegated legislation has come about through some form of malpractice [such as bias or financial interest].
The legislative and regulatory reform act 2006
The legislative and regulatory reform act 2006 [LRRA] came into force on January 8 2007. The LRRA includes orders-making powers which ministers may use to amend primary legislation. The main aim of the act is to enable outdated or over-complicated legislation to be reformed by the law commission, without there being a vote in parliament. There are, however, concerns that the powers are potentially too wide, and that the act represents an unnecessary shift of power from a democratically elected parliament to the ministers of the government
Delegated legislation and the European law
The European community’s act 1972 made special provision for the passing of delegated legislation which was specifically designed to implement the United Kingdom European legal obligations.
The EU produces many legal instruments and these may often be either regulation or directives, need to be transposed from European law into domestic law of the member state. This may be done in the United Kingdom by either passing a new act of parliament, which is lengthy, or by short cuts of using the delegation powers in the 1972 act.
Thus many minister faced with having to put EU provision into English law, may chose to make regulations, usually statutory instruments, under the 1972 act and these are scrutinised by a special committee of the house of parliament set up specifically for that purpose. This short cut has been used to bring into effect regulations in the employment law field when the European court of justice told the uk government that the existing law did not fulfil the requirements of European law, for example by the passing of regulations to extend equal pay laws in 1983. It should be noted that the legislative and regulatory reform act 2006 aims to streamline the adoption of European directives by reducing the number of statutory instruments required.
Advantages and disadvantages of delegated legislation
Advantages the advantages of delegated legislation are founded on the main disadvantage of the procedure for enacting an act of parliament which can be very lengthy procedure. Delegated legislation, in its three forms, can be brought into effect quickly as the procedures for brining it in are much less onerous.
Also, it is brought into effect with the benefit of expertise in the area concerned. For example, the local council knows local problems and which areas need some protection via by-laws, e.g. to prevent parking on the grass verges.
Disadvantages delegated legislation does have some disadvantages but theses do not out weigh the stated advantages. The main disadvantages are that through this system new laws come into effect by a process which is not totally democratic. The electorate voted in parliament to make laws and yet about 3,000 statutory instruments are effected very year by non-elected ministers or civil servants. However, without delegated legislation, it is hard to imagine how all laws needed in any one year could be effected.
Another major disadvantage is that it is very difficult to keep track of all new forms of delegated legislation issued each year which means that the law is perhaps not as accessible as it should be.
