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A level law notes - paper 3
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4 Law making: delegated legislation• Delegated legislation = law made by some person or body other than parliament, but with the au-
thority of parliament
• Parliaments authority to make DL is usually laid down in a ‘parent’ AOP known as an enabling
act
4.1 Types of delegated legislation
• Orders in council
• Statutory instruments
• By laws
4.1.1 Orders in councils
• The Queen and the Privy council have the authority to make orders in council
• The Privy council is made up of the prime minister and other leading members of the government
- Can be made on matters such as:
Transferring responsibilities between government departments
- Bringing AOP into force
- As a member of the EU, giving legal affect to European Directives
• Has power to make law in emergency situations when parliament is not sitting
• Must be an enabling act allowing the Privy council to make orders in council on the particular
topic
• Constitutional Reform Act 2005 allows the privy council to alter the number of judges in the SC
4.1.2 Statutory instruments
• Statutory instruments = rules and regulation made by government ministers
• Ministers and government departments are given authority to make regulations under their partic-
ular responsibility
• Statuary instruments can be very short covering one point
• Other statutory instruments may be very long and detailed regulations which were too complex to
include in an AOP
4.1.3 By-laws
• Can be made by local authorities to cover matters within their own area
• Many local by laws involve traffic control, or banning drinking in public places
• By laws can also be made by public corporations and certain companies for matters within their
jurisdiction, which involve the public
4.2 Control of delegated legislation
• Control is exercised by parliament and by the courts
• There may sometimes be a public enquiry before a law is passed on an especially sensitive mat-
ter, such as planning laws which may affect the environment
,4.2.1 Control by Parliament
Checks on the enabling act
• Parliament has the initial control over what powers are delegated as the enabling acts sets out
what the limits within which any delegated legislation must be made
• Parliament also retains control over the delegated legislation as it can repeal the powers in the
enabling act at any time
• There is also a delegated powers scrutiny in the HOL which considers whether the provisions of
any bills gong through parliament delegate legislative power inappropriately
Checks on the delegated legislation
• Affirmative resolution
• Negative resolution
• Questioning of government ministers
• Joint select committee on statutory instruments (Scrutiny committee)
• There are special controls for any delegated legislation made under the Legislative and Regula-
tory Reform Act 2006
Affirmative resolutions
• This means that the statutory instrument will not become law unless specifically approved by par-
liament
• The need for affirmative resolution will be included in the enabling act
- Parliament can not amend, they can either approve, annulled or withdrawn
Negative resolution
• The relevant statutory instrument will be law unless rejected by Parliament within 40 days
- Very few instruments looked at, so many so only a few will be looked at
Questioning of government ministers
• Ministers may be questioned by MPs in parliament on the work of their departments
Scrutiny committee
• Reviews all statutory instruments and where necessary will draw the attention of the HOC and
HOL to points that need further consideration
• The main grounds for referring a statutory instrument back to the HOP are that:
- It imposes a tax or a charge
- It appears to have retrospective effect which was not provided for by the enabling act
- It appears to have gone beyond the powers given under the enabling legislation
- It makes some unusual or unexpected use of those powers
- It is unclear or defective in some way
• No power to alter any statutory instrument
• The review is only a technical one
• The committee can only draw the attention of parliament to the matter
,4.2.2 The Legislative and Regulatory Reform Act 2006
• This act sets procedure for the making of statutory instruments which are aimed at repealing an
existing law in order to remove a burden
• A burden is:
- A financial cost
- An administrative inconvenience
- An obstacle to efficiency, productivity or profitability
- A sanction, criminal or otherwise, which affects the carrying on of any lawful activity
• Any minister making statutory instrument must consult:
- organisations which are representatives of interest substantially affected by the proposals
- The Welsh Parliament in relation to matters upon which the Assembly exercises functions
- The Law Commission where appropriate
• Orders must be laid before parliament by either:
1. Negative resolution procedure
2. Affirmative resolution procedure
3. Super - affirmative resolution procedure
- The minister must have regard to:
- Any representations
- Any resolution of either HOP
- Any recommendations by a committee of either HOP who are asked to report on the draft order
4.2.3 Control by the courts
• Delegated legislation can be challenged in the courts on the ground that it is ultra vires
• Ultra vires = Not valid law (mistake)
• Any delegated legislation which is ruled to be ultra vires is void and not effective
• Unless an enabling act allows it, there is no power to do any of the following:
- Make unreasonable regulations
- Levy taxes
- Allow sub delegation
• Also possible for the courts to hold that delegated legislation is ultra vires because the correct
procedure has not been followed (Aylesbury Mushroom case 1972)
• While the UK remains in the EU, statutory instruments can be declared void if they conflict with
the European Union Legislation
4.3 The reasons for the use of delegated legislation
4.3.1 Need for detailed law
• Parliament does not have time to deal with all the detail needed
• Using DL means that parliament has control, through the use of enabling acts, of what regula-
tions are passed
4.3.2 Need for expert knowledge
• Many regulations need expert knowledge of the subject matter in order to draw up the most ef-
fective laws
• Better of parliament to debate the main principles throughly, but leave the detail to be filled in by
those who have expert knowledge of it
, 4.3.3 Need for local knowledge
• For local by laws, the local councils know their own areas and can decide which areas need
drinking bans etc
• It is impossible for parliament to deal with all the local requirements for every cit, town and village
in the country
4.3.4 Need for consultation
• Consultation is particularly important for rules on technical matters, where it is necessary to make
sure that the regulations are technically accurate and workable
• By creating laws through DL ministers can have the benefit of consultation before having regula-
tions drawn up
4.4 Advantages and disadvantages of delegate legislation
4.4.1 Advantages
Saves parliamentary time
• Parliament does not have time to consider and debate every small detail of complex regulations
Access to technical expertise
• Impossible the MP’s can have all the knowledge needed to draw up laws on complex areas
• By using DL the necessary experts can be consulted
Allows consultation
• Ministers can have the benefit of further consultation before regulations are drawn up
• Consultation is particularly important for rules on technical matters, where it is necessary to make
sure that the regulations are technically workable
Allows quick law making
• In an emergency parliament may not be able to pass laws quickly enough
• Orders in council can be made very quickly
Easy to amend
• DL can be amended or revoked easily when necessary so that the law can be kept up to date
• Ministers can respond to new or unforeseen situations by amending regulations made through a
statutory instrument
4.4.2 Disadvantages
Undemocratic
• DL takes law making away from the democratically elected HOC and allows non elected people
to make law
• Parliaments control is fairly limited
- However criticism cannot be made of by laws made by local authorities since these are elected
bodies and accountable to the local citizens
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