Delegated Legislation - English Legal System Q&A A/AS LEVEL LAW
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Course
Unit 1 - Sources of law
Institution
CIE
Although delegated legislation is essential, it is important that it is controlled. Explain the types of delegated legislation and assess whether the controls used by Parliament and the court are sufficient.
Although delegated legislation is essential, it is important that it is controlled. Explain the
types of delegated legislation and assess whether the controls used by Parliament and the
court are sufficient. (25m)
Delegated legislations, also known as secondary legislation, are laws made by some
people or body other than the Parliament but with the authority of the Parliament. The
authority is included in a parent Act of Parliament, otherwise known as the enabling Act, that
is mentioned in the main Act. Without enabling Act, secondary legislation cannot be made.
Delegated legislations are not amendable compared to Act of Parliament. However, unlike
Act of Parliament, the court can review and quash it.
There are three types of delegated legislations, one of them is Order in Council, made
by The Queen and Privy Council, those being the prime minister and other members of the
government. Because of that, this type of legislation does not need to be approved by the
Parliament. The main use of Orders in Council is giving legal effect to European Directives,
transferring responsibility between government departments and lastly, bringing Act of
Parliament into force. However, the Privy Council was also given the power to make law in
time of emergency as stated in the Civil Contingencies Act 2004. Other than that, Orders in
Council can also make other types of law as it can be made on a wide range of matters. For
instance, Order in Council was used to amend the Misuse of Drugs Act 1971, in this case acts
as the enabling Act, to make cannabis a Class C drug. Few years after that, this decision was
said to be a mistake therefore another Order in Council was issued altering cannabis back to
a Class B drug.
The second type of delegated legislation is statutory instruments. This type of
delegated legislation is made by the government ministers and departments. They are given
the powers to make law for areas under their particular responsibilities. A good example of
this is the Minister for Work and Pensions has power regarding work-related matters and
Minister for Transport deals with necessary road traffic regulations. Statutory instruments are
a major law-making method as they are approximately 3,000 statutory instruments brought
into force each year. Some of them can be short however some can be long and complex. For
example, the police codes of practice in relation to police powers of stop and search, arrest
and detention. The Police and Criminal Evidence Act 1984 is the enabling Act used by the
Minister of Justice to make the statutory instruments. Other than the powers given in
enabling Acts for ministers to make statutory instruments, they were also given the power by
the Legislative Regulatory Reform Act 2006 to make any provision by order if it will, in some
way, reduce a burden resulting from legislation. In this context, burden is defined as a
financial cost, an administrative inconvenience, an obstacle to efficiency, productivity and
profitability and last but not least a sanction which affects the carrying of any lawful activity.
In other words, ministers can alter Acts of Parliament even if the parent Act did not give them
the power to do so if the changes can reduce a burden. However, they cannot make orders
to carry out highly controversial reforms.
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