Welcome to Law Making: Delegated Legislation
Hi there! Today we are looking at Delegated Legislation. This might sound like a mouthful, but it is actually one of the most practical parts of English law. Have you ever wondered how speed limits are changed on a specific road or how new safety rules for drones appear so quickly? Parliament (the big law-makers) doesn't have time to debate every tiny detail, so they "delegate" or pass that power to others. This chapter is all about who gets that power, how they use it, and how we make sure they don't abuse it!
Don't worry if this seems tricky at first. Think of it like a Headteacher (Parliament) making a school-wide rule about uniform, but letting the PE Teacher (a Minister) decide exactly what color the football socks should be. That's delegation!
What is Delegated Legislation?
Parliament is the supreme law-maker, but it's very busy. To save time, Parliament passes a "big" law called a Parent Act (also known as an Enabling Act). This Act gives someone else—like a government minister or a local council—the power to make more detailed, "smaller" laws. These smaller laws are called Delegated Legislation.
The Three Types of Delegated Legislation
There are three main types you need to know for your exam. A great way to remember them is the mnemonic: "Only Some Bake" (Orders, Statutory Instruments, By-laws).
1. Orders in Council
These are made by the King and the Privy Council (a group of senior politicians). These are usually used in emergencies or for matters that affect the whole country but don't need a full Parliament debate.
Example: Under the Misuse of Drugs Act 1971, Orders in Council can be used to quickly change the classification of a drug (e.g., moving a drug from Class C to Class B).
2. Statutory Instruments (SIs)
These are the most common type. They are made by Government Ministers for their own departments. Since ministers are experts in their fields (like Health or Transport), they are the best people to write the specific rules.
Example: The Minister for Transport might use an SI to update the Road Traffic Act to include new rules about e-scooters.
3. By-laws
These are made by Local Authorities (councils) or Public Corporations. They only apply to a specific local area or a specific place.
Example: A local council might make a by-law to ban dog fouling in a specific park. Another example is the London Underground making by-laws about smoking or behavior on trains.
Quick Review:
1. Orders in Council = King & Privy Council (National/Emergency).
2. Statutory Instruments = Ministers (Specific Departments).
3. By-laws = Local Councils/Corporations (Local areas/Specific services).
Why do we use Delegated Legislation?
Why doesn't Parliament just do everything themselves? Here are the main reasons:
1. Time: Parliament is too busy to debate every small rule.
2. Expertise: Ministers and their departments have technical knowledge that MPs might not have.
3. Local Knowledge: Local councils know their area better than a politician in London does.
4. Flexibility: It is much faster to change a Statutory Instrument than it is to pass a brand-new Act of Parliament.
5. Emergencies: Orders in Council can be made instantly if there is a national crisis.
Key Takeaway: Delegated legislation is all about efficiency and specialist knowledge.
Checks and Balances: Parliamentary Controls
Because these laws aren't made by the full Parliament, we need "watchdogs" to make sure the power isn't being misused. Parliament uses several methods to keep control:
The Parent Act
This is the very first check. Parliament sets the boundaries in the Enabling Act. It says exactly who has the power, what they can do, and how they must do it. If the person goes outside these rules, the law can be scrapped.
Negative Resolution Procedure
This is the most common check. The law is "laid before Parliament" for 40 days. If no one objects during that time, it automatically becomes law. It's a "no news is good news" approach.
Affirmative Resolution Procedure
This is for more important or controversial laws. Parliament must vote to approve it. It won't become law unless Parliament actively says "Yes."
Scrutiny Committees
There is a special group of people called the Joint Select Committee on Statutory Instruments. They review all SIs to make sure they are written clearly and don't go beyond the powers given. They check the "legal" side, not the "political" side.
Did you know? Thousands of Statutory Instruments are made every year. Because there are so many, the Negative Resolution Procedure is used most often to save time!
Checks and Balances: Judicial Review (The Courts)
If someone feels a delegated law is unfair or illegal, they can challenge it in court. This is called Judicial Review. The judge will check if the law is Ultra Vires (Latin for "beyond the powers").
1. Procedural Ultra Vires
The person making the law failed to follow the steps laid out in the Parent Act.
Example: If the Parent Act says "you must consult the public first" and the Minister forgets to do that, the law is Procedural Ultra Vires.
2. Substantive Ultra Vires
The person making the law made a rule about something they had no power to deal with.
Example: If a Minister was given power to make rules about "Road Safety" but tried to make a law about "Education Taxes," that would be Substantive Ultra Vires.
3. 'Wednesbury Unreasonableness'
This is a famous rule from a case. It means a law can be struck down if it is so completely illogical or "unreasonable" that no sensible person would have ever made it.
Key Takeaway: Parliament controls the creation of the power, while the Courts control the exercise of that power. Together, they try to prevent "Dictatorship by the back door."
Evaluating Delegated Legislation
To get top marks, you need to be able to weigh up the good and the bad.
Advantages
Saves Parliamentary time: MPs can focus on big issues like the economy or foreign policy.
Technical expertise: Specialists write the technical details, making the laws more effective.
Easy to update: Laws can be kept up-to-date with modern technology very quickly.
Disadvantages
Undemocratic: Most delegated legislation is made by unelected civil servants or ministers, not debated by our elected MPs.
Lack of Publicity: Because these laws don't go through the big TV debates in Parliament, the public often doesn't know they exist until they are broken.
Volume: There are so many (thousands a year) that it is impossible for Parliament to check every single one properly.
Common Mistakes to Avoid
1. Confusing the procedures: Remember, Negative means it passes unless stopped. Affirmative means it only passes if Parliament votes "Yes."
2. Ultra Vires Mix-ups: Don't confuse Substantive (the topic of the law) with Procedural (the method of making it).
3. The Queen/King: Remember that while the Monarch signs off on Orders in Council, it's the Privy Council (politicians) who actually make the decisions.
Summary Challenge:
Can you name the three types of delegated legislation and one way the Courts can stop them? If you can, you're well on your way to mastering this chapter!