Introduction to Delegated Legislation
Welcome to your study notes on Delegated Legislation! In our previous chapter, we looked at how Parliament makes law. However, Parliament is very busy and doesn't always have the time or the technical expertise to write every single tiny rule for the country. To solve this, Parliament "delegates" (passes on) its law-making power to other people or bodies, such as Government Ministers or local councils.
Think of it like a headteacher at a school. The headteacher might make a general rule that "all students must wear a uniform," but they might let individual teachers decide exactly what color socks are allowed in their own classrooms. That is delegation in action!
In this chapter, we will explore the different types of delegated legislation and how both Parliament and the Courts keep these "law-makers" under control.
1. What is Delegated Legislation?
Delegated legislation (sometimes called "secondary legislation") is law made by a person or body other than Parliament, but with the authority of Parliament.
Parliament gives this authority through a "Parent Act," also known as an Enabling Act. This Act sets the boundaries for what the new law-maker can and cannot do. A key statute in this area is the Legislative and Regulatory Reform Act 2006, which gives Ministers the power to make changes to existing laws if it helps to reduce "burdens" (like unnecessary paperwork or outdated rules).
Quick Review:
• Enabling Act: The "parent" law that gives someone else the power to make rules.
• Delegated Legislation: The actual rules made by that person/body.
2. The Three Main Types of Delegated Legislation
There are three ways this power is usually used. Don't worry if these names sound fancy; they are quite simple once you see what they do!
A. Orders in Council
These are made by the King (or Queen) and the Privy Council (a group of high-level advisors and Government Ministers). These are used in special circumstances, such as:
• National Emergencies: For example, making quick rules during a war or a pandemic.
• Transferring Responsibility: Moving powers between different government departments.
• Updating Law: Bringing an Act of Parliament into force.
B. Statutory Instruments (SIs)
These are made by Government Ministers for their specific areas of responsibility (departments). For example, the Minister for Transport might make rules about the safety requirements for new cars.
Did you know? Over 3,000 Statutory Instruments are made every year. They are the most common form of delegated legislation and apply to the whole country.
C. Bylaws
These are made by local authorities (councils) or public corporations (like the National Trust or railway companies). These rules only apply to a specific local area or specific property.
Example: A local council might create a bylaw banning dogs from a specific park or setting fines for littering in the town center.
Key Takeaway: Orders in Council are for emergencies/government structure; Statutory Instruments are for national departmental rules; Bylaws are for local rules.
3. Parliamentary Controls
Since Parliament is giving away its power, it needs to make sure that power isn't being abused. Here is how Parliament keeps a "check" on delegated legislation:
- Pre-drafting Consultation: Before a rule is made, the Minister often talks to experts or people who will be affected (like trade unions or doctors) to make sure the rule makes sense.
- Scrutiny Committees: A special group of MPs called the "Joint Committee on Statutory Instruments" reviews the rules. They don't look at whether the law is "good" or "bad" politically; they check if it follows the technical rules (e.g., is it clear? Does it go beyond the power given?).
- Affirmative Resolution: This is a "strict" check. Parliament must formally vote and say "Yes" to the rule before it can become law.
- Negative Resolution: This is the most common check. The rule is put before Parliament for 40 days. If no one objects, it automatically becomes law. It’s like saying, "This will happen unless someone stops it."
4. Court Controls (Judicial Review)
Sometimes, a person or organization believes a piece of delegated legislation is unfair or illegal. They can challenge it in the High Court through a process called Judicial Review.
To win, the person challenging the law must have locus standi (a "standing"). This means they must be personally affected by the law; you can't just challenge a law because you find it annoying!
The main reason a court will strike down a law is because it is ultra vires. This is Latin for "beyond the powers." There are three types you need to know:
A. Procedural Ultra Vires
This happens when the law-maker failed to follow the steps set out in the Enabling Act. For example, if the Act said the Minister must consult with the fishing industry before making a rule, and they didn't, the law is invalid.
B. Substantive Ultra Vires
This happens when the law-maker makes a rule that they simply did not have the power to make. If the Enabling Act says you can make rules about "car safety," but you try to make a rule about "bicycle helmets," you have gone "beyond your powers."
C. Unreasonableness
Sometimes a rule is technically allowed, but it is so "crazy" or illogical that no sensible person would ever have made it. The courts can strike these down for being completely unreasonable.
Memory Aid: Think of Ultra Vires as a referee in a football game. If a player picks up the ball with their hands (unless they are the goalie), the referee blows the whistle because that move is "beyond the rules" of the game.
5. Summary and Quick Check
Why do we use it? To save Parliament time, use expert knowledge, and allow for quick changes in emergencies.
Common Mistakes to Avoid:
• Don't confuse Affirmative and Negative resolutions. Affirmative requires a "Yes" vote; Negative is automatic unless there is a "No."
• Remember that ultra vires is a Court control, while resolutions are Parliamentary controls.
Key Terms to Remember:
\( \bullet \) Enabling Act: The authority-giving statute.
\( \bullet \) Statutory Instrument: National rules by Ministers.
\( \bullet \) Ultra Vires: Acting beyond legal power.
\( \bullet \) Locus Standi: The right to bring a case to court.
Don't worry if this seems like a lot of terminology! Focus on the "who, what, and how": Who makes the law? What type of law is it? How do we stop them from making bad laws?