A summary of lecture notes on UOL's Delegated Legislation. Very helpful to understand and grasp basic concepts and use as a starting point for a detailed exam preparation and revision.
Delegated Legislation
Delegated Legislation is law which can be made by somebody else or a body with the
authority of Parliament. This authority is usually laid down in a 'parent' Act or Enabling Act. It
creates a framework of law and then delegated power to others to make more detailed law
in the area. There are mainly three types of delegated legislation.
1. Statutory instruments
2. By – Laws
3. Orders in council.
Statutory Instruments
Also referred as ‘Ministerial Regulations’. Drafted by Government Departments. The power
to create these Laws will have been given to the Minister who heads the departments by the
Parent/Enabling Act. The Parent Act will lay down the procedure that must be followed to
bring the Statutory Instrument into force. Usually, a duty to consult various named
organisations, and then one of two procedures are used;
By-Laws
This is where Parliament gives Local Authorities, Public bodies, or other bodies, the right to
make Law in respect of a certain area. The purpose of this is to allow the making of rules to
suit local circumstances. For example, Local Council can pass By-Laws to make detailed
provisions with regard to car-parking or the control of Dogs. Through the use of the Local
Government Act 1972 (Parent Act), the local authorities can make By-Laws for the smooth
running of an area. Finally, Transport Authorities, for example, can use the Railways Act
1993 to regulate passengers’ behaviour whilst on Railway transport. Other examples such
as: banning drinking alcohol in some specific public places or banning riding by cycle in local
parks.
Orders in Council
Parliament may choose to delegate the power to make changes to issues of great, National
importance to the Privy Council. Consists of Prime Minister, the Monarch (King), and Senior
Ministers. The Orders in Council can be used to implement emergency legislation
(Emergency Parent Act 1920).
Orders in council are approved by the privy council and signed by the King.
Cases
, Foot and Mouth Crisis 2001 – Privy Council used the EPA 1920 to ban the movement of
livestock, to limit the spread of disease.
Scrutiny by Parliamentary committee and committee supervision:
SIs are subject to either the affirmative procedure or the ‘negative procedure’. The former
refers to statutory instruments which must be approved by both the House of Commons and
the House of Lords in order to become law, whereas in the latter procedure SIs automatically
become law unless there is an objection from either House.
Negative Resolution Procedure The Statutory Instrument is laid before Parliament for 40
days. If any MP (from Commons or Lords) refutes (prove (a statement or theory) to be
wrong or false) the Statute, the issue is settled after a short debate, and becomes void (not
valid)
Affirmative Resolution Procedure The Statutory Instrument will only become effective if
one/or both Houses of Parliament pass the Affirmative resolution.
Control by the Courts: Judicial review
Usually in the form of Judicial Review. Any member of Public, who believes that a piece of
Delegated Legislation goes beyond the powers of Government, may challenge that
legalisation. They usually consist of people who may be acted ‘Ultra Vires’, or beyond their
powers.
Questions from MP’s: MP’s can ask Ministers questions about delegated legislation at a
ministerial question time or raise them in debates.
Procedural ultra vires: Here the complaint claims that the procedure laid down in the
enabling Act for producing delegated legislation have not been followed. In Aylesbury
Mushroom Ltd. an order was declared invalid because the requirement to consult with
interested parties before making it had not been properly complied with.
Substantial Ultra vires: This is usually based on a claim that the measure under review goes
beyond the powers parliament granted under the enabling Act.
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