Introduction to Delegated Legislation
In our previous chapter on Parliamentary Law Making, we saw how Parliament is the supreme law-making body in England and Wales. However, Parliament is very busy and doesn't have the time or the technical expertise to write every single tiny rule for the country. This is where delegated legislation comes in!
Think of it like this: Parliament creates a "parent" framework (an Act of Parliament) and then "delegates" (passes on) the power to fill in the details to other people, such as government ministers or local councils. This ensures the law is practical, technical, and up to date.
Types of Delegated Legislation
There are three main types you need to know for your exam. Each one is used by different people for different purposes.
1. Statutory Instruments (SIs)
These are the most common type. They are laws made by Government Ministers for their specific departments. For example, the Minister for Transport might make rules about the safety requirements for electric scooters. These are used to add fine details to a general Act of Parliament.
2. Orders in Council
These are made by the King and the Privy Council (which is a group of senior politicians). These are often used in emergencies or to update laws when Parliament isn't sitting. They can also be used to transfer responsibilities between government departments.
3. Bylaws
These are made by local authorities (like your local city council) or public corporations (like a railway company). They cover matters that only affect a specific local area or a specific service. Example: A local council making a law about where dogs are allowed to walk in a public park.
Quick Note: The Legislative and Regulatory Reform Act 2006 is an important piece of legislation here. It gives Ministers the power to make changes to existing laws via delegated legislation if the change removes a "burden" (like unnecessary red tape or costs) from businesses or individuals.
Key Takeaway: Delegated legislation allows experts and local people to make specific rules, saving Parliament time.
How is Delegated Legislation Controlled?
Because we are giving power to people who weren't directly "voted in" to make these specific laws, we need checks and balances. We call these controls. There are two main ways we control this power: through Parliament and through the Courts.
Parliamentary Controls
Parliament keeps an eye on the powers it has given away using these methods:
- Pre-drafting consultation: Before a law is even written, the Minister often consults with experts and groups who will be affected by the law to make sure it is sensible.
- Scrutiny Committees: These are small groups of MPs or Lords who look at the technical details of a piece of delegated legislation. They check things like whether it imposes a tax (which it shouldn't) or if it's gone beyond its powers.
- Affirmative Resolution: Some delegated laws are so important that Parliament must actively vote "Yes" for them to become law.
- Negative Resolution: This is the most common. The law is put before Parliament, and if no one objects within 40 days, it automatically becomes law.
Court Controls (Judicial Review)
If someone feels a delegated law is unfair or wrong, they can challenge it in the High Court. This process is called Judicial Review. To do this, the person must have locus standi (a "standing" or a direct legal interest in the case).
The judges will then decide if the law is ultra vires. This is Latin for "beyond the powers." If a law is ultra vires, it is void and has no effect. There are three types of ultra vires:
- Procedural Ultra Vires: The law-maker failed to follow the correct steps or procedures set out in the "parent" Act (e.g., they didn't consult the right people first).
- Substantive Ultra Vires: The law-maker made a rule that they simply didn't have the power to make under the original Act.
- Unreasonableness: Sometimes called "Wednesbury unreasonableness." This happens when a law is so irrational or bizarre that no sensible person would have ever made it.
Key Takeaway: Parliament controls the process, while the Courts (Judicial Review) control the validity of the law based on whether the law-maker stayed within their limits.
Summary and Quick Review
Don't worry if the Latin terms seem hard! Just remember:
- Delegated Legislation = Law made by someone other than Parliament, but with Parliament's permission.
- Statutory Instruments = National rules by Ministers.
- Bylaws = Local rules.
- Orders in Council = Emergency or technical rules by the King/Privy Council.
- Ultra Vires = When a law-maker goes "beyond their powers" and the court cancels the law.
Common Student Mistake:
Students often forget that judges cannot cancel an Act of Parliament (because of Parliamentary Supremacy), but they can cancel delegated legislation if it is ultra vires. Make sure you keep that distinction clear in your essays!