Three forms of Delegated Legislation and Control over it.
Three forms of delegated legislation
Delegated legislation is law made by a person or body that parliament has delegated law-making power to. The three types of delegated legislation are orders in council, statutory instruments and by-laws.
Orders in council are drafted by the Government and given formal approval by the Queen and the Privy Council. Orders in Council are generally used where it would be inappropriate for the order to be made by a Minister, for example where the matter is of constitutional significance (such as transferring powers and functions from one Minister to another, or bringing into force emergency powers to be exercised by Ministers e.g. emergency powers Act 1920).
Statutory instruments are laws made by a government minister under the authority of a parent/enabling Act within the area of their ministerial responsibility.
Statutory instruments are often used to update law, for example to increase in the amount of the national minimum wage under the National minimum wage Act 1998.
Law that is made to comply with directives from the European Union is usually made in the form of a statutory instrument e.g. the Sale and Supply of Goods to Consumer Regulations 2002 were made in order to comply with the Sale of Consumer Goods Directive 1999.
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By-laws are made by local authorities and public corporations or companies. They must be confirmed by the relevant government minister and they are enforceable in the courts.
Local authorities can make laws which apply just within their geographical area. These laws can deal with many issues, e.g. drinking alcohol in public places or the fouling of public areas by dogs.
A parent Act in respect to dog fouling is the Dogs (Fouling of Land) Act 1996. Under this Act a local authority can designate areas of land as poop scoop areas. Those who are responsible for dogs who foul this designated land and who do not clear up the ‘foulings’ are subject to a fixed penalty of £50.
Public bodies and some companies are authorised to make laws regulating the behaviour of the public while on their property. For example, under the Railways Act 1993 railway companies can issue by-laws about behaviour of the public on their stations and trains.
Control over delegated legislation
The initial control Parliament has over delegated legislation is through the limits it sets in the parent/enabling Act. The parent/enabling Act will set out how the delegated legislation must be made and may set out certain procedures, such as consultation to be followed.
Parliament may repeal or amend the piece of delegated legislation. However, the effectiveness of this control is limited, because of the amount of delegated legislation made; Parliament will not be able to check it all.
All by-laws are confirmed or approved by the relevant government minister. This should ensure that all locally made law is overseen by those with the expertise of the technical issues involved.
The Joint Select Committee on Statutory Instruments reviews statutory instruments and refers provisions requiring further consideration to both Houses of Parliament. This is arguably one of the more effective controls, as many statutory instruments are subject to some scrutiny.
The House of Lords Delegated Powers Scrutiny Committee checks all Bills for any inappropriate enabling provisions. Any such provisions are brought to the attention of the House of Lords before the Bill goes to the Committee stage.
Most statutory instruments must be laid before Parliament. This requires the statutory instruments to be laid on the table of the House. There are two methods of laying delegated legislation before Parliament; affirmative resolution procedure and negative resolution procedure.
With an affirmative resolution procedure the statutory instrument must be approved by one or both Houses of Parliament within 40 days, before it can become law.
However, most statutory instruments are subject to the negative resolution procedure. The statutory instrument is laid before Parliament, usually for 40 days, during which time either House can put down a motion calling for an annulment. There is then a debate or a vote. If either House vote to pass the annulment motion, the statutory instrument does not become law.
Another form of Parliamentary control is the removing of power. Parliament can remove the power to legislate from the delegated person or body. This can be done by amending or repealing the parent/enabling Act.
The Judiciary also has control over delegated legislation. The validity of a piece of delegated legislation can be challenged in the High Court through the judicial review procedure.
When delegated legislation is made beyond the powers conferred by the parent/enabling Act, the delegated legislation can be declared ultra vires by the court and void. There are two types of ultra vires; procedural and substantive.
Procedural ultra vires is concerned with how the delegated legislation is made. Some parent Acts specify procedures which must be followed. Any delegated legislation which is made without following these procedures can be declared ultra vires and void.
Substantive ultra vires is concerned with whether the content of the delegated legislation is within the limits set out in the parent Act. Any delegated legislation beyond these limits can be declared ultra vires and therefore void.
The courts may also declare that the delegated legislation to be ultra vires on the basis that it is unreasonable. This judicial control was established in Associated Provincial Picture Houses v Wednesbury Corporation (1948), commonly known as ‘wednesbury unreasonableness’.
The courts can also declare a piece of delegated legislation ultra vires and therefore void if it levies taxes, where it allows sub-delegation, where all parties have not been consulted as required by the parent/enabling Act, or if the delegated legislation conflicts with European legislation.
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Summary: Neither piece sets out a specific question. However both parts accurately described delegated legislation and controls over it. Both parts could be improved by use of examples and/or case examples. Rating: ****