Explain the different aspects of delegated legislation. Analyse the degree of scrutiny by Parliament and the courts of these delegated powers.

It should be noted that the doctrine of the sovereignty of Parliament is upheld. Parliament has the power to allow a share in power, allowing other bodies to make law, but Parliament also holds the right to remove that power. It could be true to say that nothing is law without the permission of Parliament. Enabling acts are made law by Parliament and Parliament holds the powers to unmake those laws. It could be said, therefore, that Parliament are always holding the rein, albeit a lengthy one at times, preventing it from going slack and falling outside of the law.

Delegated, secondary or subordinate, legislation is categorised into three main types. Statutory instruments, orders in council and by-laws.

Ministers who are specifically given power to make law, within their specialist area, usually do so in the form of Statutory Instruments. Each passed will contain regulations dealing with the subject matter of the enabling act. For example, the education minister may be enabled to make law under the Education Act 1996. The minister for education would obviously be sensitive to the needs of those affected by such laws and would make the additions to any existing legislation with a knowledgeable mind. Of course, this is arguable but it would be expected that a minister would act in the best interests of those affected within his specific area.

Orders in council refers to any regulations made by the Monarch. A Monarch is able to make law at times when there has been a proclamation of emergency. This has been allowed under the Emergency Powers Act 1920. However, this is limited in that a Monarch may only make regulations to secure the essentials of life to the community.

An order in council will contain a set of regulations that relate to the subject matter of the enabling power. This type of delegated legislation ‘tends to be reserved for matters of greater importance or constitutional significance than that which is thought to be the proper subject matter of ministerial regulations’. An example of this would be the use of orders in council to stipulate the date on which an Act will take effect. Orders in council may also be used to stipulate any change in constituency boundaries or to give effect to emergency regulations.

With regard to procedure, orders in council are treated in the same way as statutory instruments in accordance with the Statutory Instruments Act 1946

By-Laws is a term used for laws made by local authorities. The enabling act allowing these bodies to make law is the Local Government Act 1972. Section 235 of this act gives authorisation for district councils to

‘make by-laws for the good rule and government’ relating to the areas under their control. Although this power has passed to a body outside the ‘democratically correct’, it must be approved by a Secretary of State.

Although delegated legislation is not made in the same way primary legislation is made, it is applied by the courts in the same way. The methods of interpretation used by the courts have the flexibility to reach a consistent decision in keeping with Parliament’s intended purposes for the law being applied.

There are several ways a court may interpret statutes. It is at the judge’s discretion to decide on a fitting method so as to reach the ‘right’ outcome. The methods of statutory interpretation are so-called rules, though it could be said they are approaches rather than rules.

The Literal Rule is an approach used when the courts interpret every word within an Act of Parliament without legal capacity. Words are taken in their plain and grammatical meaning. Although this approach means that everyone can understand what the law says, it often leads to absurdity.

The Golden Rule is used where there are two possible meanings to the wording of an Act and using the Literal Rule would lead to an absurdity.

The Mischief Rule allows the court to use more discretion in that they are able to look beyond the words of the Act of Parliament and look at the intentions of Parliament. The court must ask what mischief Parliament intended to remedy when passing the legislation. The law must then be interpreted to remedy such mischief.

All three approaches are concerned with the ‘spirit of the law’ and what Parliament intended the law to be when passing it.

When discussing the scrutiny of Parliament, it is necessary to define the meaning of this. The phrase suggests that Parliament will scrutinise every tiny detail of legislation made by other bodies. However, parliamentary scrutiny is a parliamentary control. Parliamentary control is via consultations of interests, publicity and Parliamentary scrutiny.

Most enabling acts will require that statutory instruments made pursuant to them should be laid before Parliament according to one of three procedures. The three procedures are known collectively as Parliamentary scrutiny.

The first and most commonly used procedure is known as the procedure of laying subject to the negative resolution. This procedure is used for, in excess of seventy percent of all, statutory instruments. The requirements of the procedure can be found set out in the Statutory Instruments Act 1946. This states that the instrument should be ‘laid before’ Parliament for a period of forty days. During that time, both Houses have the opportunity to examine it. If neither House passes an annulment or negative resolution then the instrument will stand. However if either of the two Houses pass an annulment or negative resolution, the instrument will cease to have effect.  

There is some debate and uncertainty as to when a statutory instrument made according to this procedure will take effect. However, it is thought that it will take effect when it is laid before Parliament, not when the minister concerned makes it nor when the forty day period ends with no objections.

This is the more popular and preferred method of Parliamentary control as it seems to give tighter control to Parliament. It is also said to preserve precious Parliamentary time as there is no need for debate unless there has been opposition.

‘The consequences of a failure to publish a statutory instrument or to lay it before Parliament, where so required, are not entirely clear. Judicial comment suggests that where an instrument is not published according to the Statutory Instruments Act 1946 and no other reasonable steps are taken to make its content known, the instrument is probably invalid or at least ineffective.’

When reasonable steps have been taken to publish an instrument, it may be effective even where there has been a failure to publish it in the statutory or formal sense. It could be said, therefore, that the requirement of publication imposed by the 1946 Act is for the purposes of direction only.

The second procedure used is the procedure of laying subject to the affirmative resolution. Whilst this procedure retains Parliamentary control, it also takes up valuable time. The allocation of such time being a disadvantage to this procedure.

The procedure itself tends to be of concern to instruments that may relate to matters of principle or controversy. For example, instruments containing emergency regulations or those giving effect to legislation for Northern Ireland. The enabling act specifies the length of time that these instruments are to be laid before Parliament. An instrument will not take effect until affirmation has been passed.

The third procedure is that known as laying in draft subject to negative or affirmative resolutions.

This procedure requires that any instrument laid in draft will not become effective until forty days have passed without an annulment being passed by either House. However, this is not the only test this instrument will be subjected to prior to giving effect. Not only must annulment be avoided, affirmation is also required within the forty day period.

All instruments that are laid before Parliament are subject to scrutiny by the Joint Committee on Statutory Instruments. The committee must decide whether any particular instrument should be drawn to the attention of either House. This can only be done according to specific criteria. The grounds for bringing an instrument to the attention of either House are that :

‘a) it imposes a tax or charge on public revenues;

 b) the enabling Act seeks to exclude it from Judicial Review;

 c) it purports to have retrospective effect without clear authority in the enabling Act;

 d) there appears to have been unjustifiable delay in its publication or laying before Parliament;

 e) it may be ultra vires or appears to make an unusual or unexpected use of the enabling power;

 f) it appears to have been drafted defectively;

 g) it requires elucidation on any other ground.’

There is judicial supervision of statutory instruments. Unless there is clear authority, by express words or necessary implication, contained in the enabling Act, Parliament does not intend such powers to impose a tax or to deny or restrict the citizen’s rights of access to the courts.

Courts tend not to question statutory instruments except where their application would lead to an absurdity or would manifest absurdity or extreme bad faith or where it has an improper purpose. A statutory instrument will be questioned by a court where it will have retrospective effect or if would restrict basic civil liberties or human rights. Where a court believes a statutory instrument to be against the spirit of Parliament, it may be struck down for unreasonableness. The failure to consult a statutory instrument may render it ruled invalid.

Upon consideration of the procedures available for Parliamentary control over delegated legislation, it could be said that Parliament exercise strict control over any delegated power ensuring that no legislation is passed to take effect without their express consent.

It appears that concerns for the loss of sovereignty are unfounded and without merit. However, a court is able to interpret and apply any legislation as it sees fit. It could be said, arguably, that it is the judiciary alone who are supreme in that the application of the law is what makes a difference rather than the processes which allow them to do so. This view could be construed as rather narrow in that any case may ultimately progress to the House of Lords again returning the decision making powers to another arm of the body that delegates the power on the outset. Whilst the judiciary are free to interpret the law, it is the amount of freedom they have that should be questioned with regards to the application of law. That freedom and power is given by Parliament and can be removed as procedurally as it was given.

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