Revision: Delegated Legislation

　　Parliament passes authority to other bodies to create laws.

　　Types of Delegated Legislation

　　Statutory Instruments (SIs)

　　Created by government ministers

　　Add detail to the parent Act

　　Road Traffic Act 1972

　　All motorcyclists must wear helmets; it is left to Minister of Transport how to legislate on the details such as what type of helmet

　　Road Vehicle Regulations 2003

　　Mobile phones cannot be used while driving

　　Bylaws

　　Local authorities make laws for a local area.

　　May also be made by some public corporations, e.g. London Underground

　　E.g. No drinking alcohol on the streets of Bury.

　　Orders in Council

　　Made by the Queen and Privy Council

　　In times of emergency

　　Most frequently where SIs would be inappropriate

　　E.g. Foot and Mouth crisis, 2001

　　UN Sanctions Order 1990

　　Imposed (food) sanctions on Iraq, upon invasion of Iraq

　　Reasons for Delegated Legislation (Advantages)

　　Relieves pressure on Parliamentary time

　　……

　　Control of Delegated Legislation

　　Power may be misused- bodies must be prevented making unsuitable DL

　　General control methods

　　1. Consultation

　　The creators consult experts in the relevant field; for example, a SI on road traffic law may be referred to the AA. The enabling Act may make such consultation compulsory.

　　2. Publication

　　All DL is published, therefore is available for public scrutiny

　　Parliamentary control

　　Parliament, through the doctrine of parliamentary sovereignty, may revoke any piece of DL.

　　Affirmative Resolution Procedure

　　May require that all DL under a particular Act is approved by a motion in both Houses of Parliament, with a debate and vote.

　　Must be passed within 40 days.

　　Rare, and only for parent Acts of importance

　　Negative Resolution Procedure

　　New DL displayed in Parliament will become law unless any MP objects within 40 days.

　　Parliamentary Committees

　　Committees from both Houses to scrutinize Parliamentary legislation

　　Scrutiny Committee: reviews SIs

　　Delegated Powers Committee: watchdog for all DL

　　Judicial control

　　Delegated legislation may be challenged in the courts

　　If a piece of DL goes beyond the powers granted to it by Parliament in the relevant statute, it can be deemed "ultra vires" and therefore void.

　　A piece of DL can be challenged by anyone who believes that they have been adversely affected by it. They will apply to the High Court for Judicial Review.

　　The court will ask:

　　a) Did the maker of the DL exceed the powers given in the parent Act?

　　Bulger case 1996

　　Home Secretary Michael Howard intervenes to increase minimum sentence of 2 murderers from 8 to 15 years; this was ultra vires.

　　R v Wood 1855

　　Minister for Health created an SI that would force all people to clear snow off their own paths, on the pretext that it was an "unhygienic substance"

　　b) Is the DL irrational or unreasonable?

　　Strickland v Hayes BC

　　A bylaw would prohibit obscene songs/language in any place, including in private. Held to be unreasonable.

　　c) Has there been a defect in the procedure by which the DL was made?

　　Aylesbury Mushroom Case 1972

　　The minister did not consult the Mushroom Growers' Association when a piece of DL relating to them was made.

　　Evaluation of control methods

　　Consultation - adds a democratic element to the process

　　Publication - available for public scrutiny

　　Affirmative Resolution - again democratic, both Houses

　　"Irrational/Unreasonable" - cannot make unreasonable demands

　　However, control methods may not be effective:

　　Air Navigation Order 1995 - had to be replaced within 3 months due to defects and errors

　　Criticisms of Delegated Legislation

　　Taken from Phil Harris, "An Introduction to Law"

　　Takes legislation away from elected bodies

　　(Except in the case of local authorities)

　　Some DL causes a minister to have actual legislative power

　　European Communities Act 1972- gives ministers power to make provisions which implement EU policies

　　CLSA 1990- LC has power to amend/repeal laws on provision of legal services

　　Sub-delegation

　　Much law made by civil servants, merely rubber-stamped by ministers

　　Made largely in private-lack of publicity

　　Like statute, can suffer from obscure/difficult wording

　　Insufficient control

　　Public are frequently unaware of how to challenge it

　　Air Navigation Order 1995

　　Some enabling Acts give wide powers to Ministers

　　Hard to prove them acting ultra vires