Delegated Legislation: Orders in Council

• Delegated legislation is law made by a person or body other than Parliament, but with its authority.
• This authority originates from a 'parent' Act of Parliament, known as an enabling Act.
• The enabling Act sets out the framework of the law and delegates power to others to make more detailed regulations.

Orders in Council

• Orders in Council are made by the Queen and the Privy Council.
• The Privy Council consists of the prime minister and other leading government members.
• Orders in Council allow the government to legislate without parliamentary debate or vote.
• They address a wide range of matters, including:
  • Transferring responsibility between government departments.
  • Bringing Acts of Parliament into force.
  • Making law in emergencies under the Civil Contingencies Act 2004.

Statutory Instruments

• Statutory instruments are rules and regulations made by government ministers.
• Government ministers are authorized to make these regulations within their department's policy area.
• Statutory instruments can be short, like annual minimum wage changes.
• Some may be long and detailed, such as The Chemicals Regulations 2009.
• Police codes of practice regarding stop and search, arrest, and detention are statutory instruments.

Bylaws

• Bylaws are made by local authorities for local matters.
• County councils can pass bylaws for the entire county.
• District and town councils can make bylaws for their specific district or town.
• Many local bylaws address traffic control, like parking restrictions.
• Bylaws can regulate behavior, like banning drinking in public or cycling in parks.
• Public corporations and certain companies use bylaws to enforce rules within their jurisdiction.
• The British Airports Authority and railway companies make rules about public behavior on their premises.

Legislative and Regulatory Reform Act 2006

• The Legislative and Regulatory Reform Act 2006 allows ministers to make provisions by order.
• This is permissible if it removes or reduces a 'burden' resulting from legislation.

Parliamentary Control over Delegated Legislation

• Parliament can repeal the powers in the enabling Act, ending the right to make further regulations.
• The Delegated Powers Scrutiny Committee in the House of Lords reviews Bills for inappropriate delegation of legislative power.
• Parliament has several ways to oversee delegation:
  • Pre-drafting consultation: Government departments consult interested parties when drafting regulations (but are not required to act on the feedback).
  • Affirmative resolutions: Statutory instruments require specific parliamentary approval to become law and must be debated.
  • Negative resolutions: Statutory instruments become law unless rejected by Parliament within 40 days.
  • Scrutiny Committee: Reviews all statutory instruments, raising concerns to both Houses of Parliament.
  • Questioning: MPs can question ministers about proposed regulations.
  • Publicity: Ensures delegated legislation is published for public comment before it becomes law.

Judicial Review

• Judicial review actions are taken in the Queen's Bench Division of the High Court.

Procedural Ultra Vires

• Procedural ultra vires concerns the process of making delegated legislation.
• Delegated legislation made without following the correct procedure is ultra vires and void.
• In Agricultural Horticultural and Forestry Training Board v Aylesbury Mushrooms Ltd, failure to consult the Mushroom Growers' Association made an order establishing a training board invalid for mushroom growers.

Substantive Ultra Vires

• Substantive ultra vires concerns whether the content of the delegated legislation is within the limits of the parent Act.
• Delegated legislation exceeding those limits is ultra vires and void.
• In R v Home Secretary, ex parte Fire Brigades Union, changes made by the Home Secretary to the Criminal Injuries Compensation Scheme exceeded the power in the Criminal Justice Act 1988.

Reasonableness

• Delegated legislation can be deemed 'Wednesbury unreasonable' if the rules are manifestly unjust, made in bad faith, or perverse.
• In R (Rogers) V Swindon NHS Trust, the Court of Appeal held the 'exceptionality' review meaningless and the decision irrational.

Parliamentary Control Limits

• Pre-drafting consultation is not always carried out.
• Repealing the enabling act is impractical because laws still need to be made.
• The Delegated Powers Scrutiny Committee lacks the power to amend legislation; not all regulations need to be laid before them.
• Affirmative Resolution takes up Parliamentary time and Parliament can't amend, only approve, annul, or withdraw.
• Negative resolution depends on someone seeing the proposal and questioned by MPs in Parliament.
• Scrutiny Committee is more effective and it sees all Statutory Instruments but a technical review. They can only report back, no power to alter statutory instruments. The review is technical one and not based on policy.
• The public may not know of the existence of delegated legislation due to lack of publicity.

Judicial Review Limits

• Challenges require locus standi: actions for Judicial review will be taken in the Queens Bench Division of the High Court. It can only be taken by a person or body with locus standi or an interest in the proceedings. Locus standi will be decided as a preliminary matter, before the main issues in the case are considered.
• It is expensive and technical.
• Legal advice is necessary, and there is no legal aid funding available to challenge delegated legislation.
• The public may not know delegated legislation can be challenged this way.

Advantages of Delegated Legislation

• Time-saving: It is quicker to pass and amend.
• Policy over detail: MPs can focus on wider issues.
• Speed: It allows for quick responses in emergencies.
• Expertise: Parliament might lack technical knowledge, and local bodies can address local issues.
• Flexibility: It can be easily amended or revoked.
• Controls: There is both parliamentary and judicial oversight.
• It allows for consultation.

Disadvantages of Delegated Legislation

• It takes law-making away from the democratically elected House of Commons.
• Sub-delegation: Law-making authority may be handed down another level.
• Delegated legislation contains obscure wording.
• There is little control over non-elected people.
• There is such a large amount of delegated legislation that it is difficult to find out what the current law is.
• There is a lack of publicity.

Legislative and Regulatory Reform Act 2006 Details

• Ministers must consult various people and organisations.
• Orders made under this Act must be laid before Parliament.
• Controls are important, as the Act gives ministers broad powers to amend Acts of Parliament without detailed debate.