These can be made by local authorities to cover matters within their own area, for example Norfolk County Council can pass laws affecting the whole county, while a district or town council can only make bylaws for its district or town. Many local bylaws cover matters such as traffic control and parking restrictions. Bylaws can also be made by public corporations and certain companies for matters within their jurisdiction which involve the public.
The Queen and the Privy Council have the authority to make Orders in Council under the Emergency Powers Act 1920, but this authority will usually only be exercised in times of emergency when parliament is not sitting. An example of an incident which was covered by orders in council was the foot and mouth crisis.
b) Delegated legislation is controlled by both parliament and the courts. Describe how both these methods of control work and consider how effective they are.
Initially Parliament has control with the enabling act which sets the parameters within which the delegated legislation is to be made.
The Joint Select Committee on Statutory Instruments also known as the Scrutiny Committee is responsible for reviewing all Statutory Instruments and, where necessary, will draw the attention of Parliament to points that need further consideration.
Although this is the most effective form available for checking an SI, the scrutiny committee can only report back its findings; it has no power to alter any Statutory Instrument. It has been found in the past that crucial findings of the committee were ignored by ministers.
Other control Parliament exercises over delegated legislation includes affirmative or negative resolution procedures. The former means that the SI will not become law unless approved by Parliament. The need for Affirmative resolution will be included in the enabling act.
All other Statutory Instruments will be subject to a negative resolution procedure in which the SI will become law unless rejected by parliament within 40 days. If there are objections then the SI must be debated.
Although the bill will or may be debated before parliament the disadvantage of these procedures is that parliament cannot amend the statutory instrument; it can only be approved, annulled or withdrawn. Hence this procedure can waste time as bills that are annulled or rejected cannot be amended.
Delegated legislation can also be challenged in the courts under the doctrine of Ultra Vires, i.e. it goes beyond the powers that parliament granted it in the enabling act. The question as to the validity of the piece of delegated legislation may be raised through the judicial review procedure in which the case will be taken to the Queen’s Bench Division of the High Court where a High Court judge will express opinion as to whether the legislation is in order or not, or it may arise in a civil claim between two parties. Any delegated legislation which is ruled to be Ultra Vires is void and not effective. This was illustrated by R v Home Secretary, ex parte fire brigades union (1995).
Control by the courts is generally effective as the courts will presume that unless expressed in the enabling act there is no power to do the following.
- Make unreasonable regulations
- Impose Levy Taxes
- Allow for sub-delegation
- Follow unauthorised procedures
This provides justice for those who are wronged by delegated legislation and restricts the power of those who make delegated legislation.
