Delegated Legislation Factsheet PDF AQA

DELEGATED LEGISLATION FACTSHEET AQA The nature of law and the English legal system EBradbury.com Need to know: Types of delegated legislation: Orders in Council, Sta...

DELEGATED LEGISLATION FACTSHEET AQA The nature of law and the English legal system EBradbury.com Need to know: Types of delegated legislation: Orders in Council, Statutory Instruments and bylaws (from local authorities and public bodies). Parliamentary and judicial controls on delegated legislation. The reasons for the use of delegated legislation. The advantages and disadvantages of delegated legislation. The reasons for the use of delegated legislation Parliament does not have the time or expertise to pass every law that is necessary each year. It is therefore, necessary for it to give some of its power to other people and organisations to make laws. It gives this power in an enabling Act (an enabling Act is sometimes known as a parent Act). It would be difficult for parliament to make laws for your local area because the Members of Parliament would not have the local knowledge necessary to understand what laws are necessary in a given area. If there needed to be a small change to an existing law, it would be better to get someone other than parliament to make this change because Parliament do not have enough time to consider every small change that is necessary to update existing laws. It is also better to have such changes made by an expert. If there was a war or a national crisis, it would be problematic to pass laws in the usual way (legislation process) because it would not be practical to have the whole of parliament sitting during a war. Such laws may need to be passed quickly. Types of Delegated Legislation Delegated legislation is where parliament gives its law-making power to others to make laws. There are three main types of delegated legislation. 1. Bylaws These are made by local councils and other public bodies. Local councils may wish to ban drinking in their town centre as occurred in Manchester in time for the Commonwealth Games. Another example would be the fines incurred by people who let their dogs foul in Page 1  DELEGATED LEGISLATION FACTSHEET AQA The nature of law and the English legal system EBradbury.com public parks. The council will be granted this power in an enabling Act such as the Local Government Act 1972. Public Corporations such as the bus and train services are able to impose fines for non-payment of fares. 2. Statutory Instruments These are regulations made by government departments to implement the provisions made in Acts of Parliament. Some Acts of Parliament allow for future changes to be made to the law by government ministers and their departments. This saves parliament from having to re-write an entire Act just to make some small changes. For example, the Dangerous Dogs Act 1991 allows the Home Secretary to add more breeds of dangerous dog to the Act if it is deemed necessary. Another example of a statutory instrument is the codes of practice which the Minister for Justice has the power to make or change rules relating to police powers. These codes add detail to the powers of the police as laid out in PACE (Police and Criminal Evidence Act) 1984. Since the Legislative and Regulatory Reform Act 2006, all ministers can make changes to existing Acts even when there is no such power mentioned in the Act. They can only do this if it will remove or reduce a ‘burden’ from the legislation e.g. a financial cost, an administrative inconvenience, an obstacle to efficiency or a sanction which affects the carrying on of an unlawful activity. 3. Orders in Council This type of delegated legislation is made by the Privy Council. The Privy Council is made up of senior politicians who have the authority to make laws without the need for the whole of parliament to be sitting. This can be used in times of emergency under the Emergency Powers Act 1920 e.g. during the outbreak of foot and mouth disease in 2001, the Privy Council passed laws to reduce the spread of the disease. Orders in Council are also used to transfer responsibility between government departments especially when new departments are set up e.g. when the Ministry of Justice was created; some of its powers were transferred from the Home Office and the Department of Constitutional Affairs. They were also used to transfer powers to the devolved assemblies in Scotland and Wales in 1999. The Privy Council also uses its powers to give legal effect to European Directives and thus incorporate the laws of the European Union into the laws of the UK. Page 2  DELEGATED LEGISLATION FACTSHEET AQA The nature of law and the English legal system EBradbury.com Some Acts of Parliament specify that changes can be made to the law by the Privy Council. The Misuse of Drugs Act 1971 enabled the Privy Council to change the classification of cannabis from class B to class C. They then used the same enabling Act to change it back to class B. Another example is the Constitutional Reform Act 2005. This allows the Privy Council to alter the number of judges in the Supreme Court. Parliamentary Controls It is important that delegated legislation is checked by Parliament to ensure that this power is being used correctly. There are ways in which parliament can ensure that the delegated laws will be made properly in the future: Enabling Act Before delegated law making power is used, parliament can ensure that it is used properly by making sure that the enabling Act is worded correctly. It must state exactly who the law making power is delegated to and the procedure they must follow if they want use it. Some enabling Acts specify a period of consultation is necessary before any laws are made. House of Lords Delegated Powers Scrutiny Committee Any bills that include sections that will delegate future law making power to government ministers are checked by this committee during the legislation process. This committee cannot make changes to such a bill but they will report their finding before the bill reaches the Committee Stage of the legislation process. There are also checks made to the delegated laws once they have been drafted: Affirmative & Negative Resolution Procedures Enabling Acts that give important or constitutional powers to government ministers to make statutory instruments may require Parliament to vote before the delegated legislation can be passed. This is an Affirmative Resolution Procedure. Parliament must vote to approve the order. Parliament cannot make changes to the statutory instrument. They must either approve or annul. Page 3  DELEGATED LEGISLATION FACTSHEET AQA The nature of law and the English legal system EBradbury.com Most statutory instruments are subject to a Negative Resolution Procedure. Parliament may cancel a piece of delegated legislation within 40 days if an MP puts forward a motion to annul. Joint Select Committee on Statutory Instruments This committee is known as the Scrutiny Committee. It checks all statutory instruments to ensure that they have been made correctly. It does not consider whether they should have been made. This is instead considered by the House of Lords Select Committee on the Merits of Statutory Instruments. Neither of these committees have any power to amend the statutory instrument. They simply make parliament aware of their concerns. Parliament would need to revoke the delegated law if they wanted to remove it. Statutory Instruments made under the Legislative and Regulatory Reform Act 2006 to remove a ‘burden’ (see before) must consult with anyone who will be substantially affected by the proposal, the Welsh Assembly (if they are affected) and the Law Commission (if appropriate). Orders made under the Legislative and Regulatory Reform Act 2006 are subject to an affirmative resolution procedure, a negative resolution procedure or a super- affirmative resolution procedure. The super-affirmative resolution procedure requires the minister making the statutory instrument to have regard to any recommendations made by the Commons or Lords committee that have made a report on the draft order, any resolution of either House and any other representations that have been made. These controls are in place to make sure that the wide power to make laws under the Legislative and Regulatory Reform Act 2006 is properly checked by parliament. Judicial Controls on Delegated Legislation An organisation or member of the public may challenge a piece of delegated legislation in the High Court. This is called JUDICIAL REVIEW. The judge will interpret the wording of the enabling Act to decide if the law was made ultra vires (beyond their power) and will declare it void. Under the Civil Procedure Rules 1999, an application for judicial review must be made within three months. The person making the application must also have a legal interest (locus standi) in the outcome of the case. This legal interest was extended to include pressure groups in R v Her Majesty’s Inspectorate of Pollution ex parte Greenpeace (1994). Types of ultra vires: Page 4  DELEGATED LEGISLATION FACTSHEET AQA The nature of law and the English legal system EBradbury.com Procedural Ultra Vires If the enabling Act has set out certain procedures that must be followed before delegated legislation can be passed, a challenge can be made in the courts if this procedure is not followed. Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushrooms Ltd (1972) The Training Board was required by the enabling Act to consult anybody who might be affected by one of their laws. They did not consult the Mushroom Growers’ Association and therefore, the piece of delegated legislation was void. Substantive Ultra Vires Delegated legislation may be declared void if it allows something that the enabling Act did not intend. Commissioners of Customs and Excise v Cure and Deeley (1962) The Finance (No. 2) Act (1940) did not allow Customs and Excise to charge extra for late tax returns so when they started to issue fines to people; they were challenged in the courts. The judge found that they had acted beyond their power and therefore, it was void. R (Ann Summers Ltd) v Jobcentre Plus (2003) The job centre refused to advertise jobs to work in Ann Summers shops. Ann Summers challenged the job centre’s power to do this. The court held that the job centre did not have this power and declared it void. Other examples of substantial ultra vires include R v Home Secretary ex parte Fire Brigades Union (1995) where the Home Secretary was found to have exceeded the power granted in the Criminal Justice Act 1988. In R v Secretary of State for Health ex parte Pfizer (1999), the minister for health was found to have acted ultra vires when advice was sent out to doctors telling them not to prescribe Viagra. Page 5  DELEGATED LEGISLATION FACTSHEET AQA The nature of law and the English legal system EBradbury.com Unreasonableness The courts will also declare delegated legislation to be void when the law made under the enabling Act is ‘unreasonable’. This was established in the case of Associated Provincial Picture Houses v Wednesbury (1948) and is known as ‘Wednesbury unreasonableness’. R v Sacupima ex parte Newham London Borough Council (2000) This case is an example of ‘Wednesbury unreasonableness’. Newham Council offered people who had become homeless bed and breakfast accommodation in Brighton. These people were not able to afford to live in Brighton and travel back to Newham for their benefits, schooling and medical treatment. The decision to re-house them so far away was held to be unreasonable. R (on the application of Smeaton) v Secretary of State for Health (2002) The order allowing the ‘morning-after pill’ to be sold without prescription was challenged by an anti-abortion pressure group. They argued that the law allowed the procurement of a miscarriage which is a crime under s.59 Offences Against the Person Act 1861. The judge rejected this argument and upheld the delegated law as valid. Page 6  DELEGATED LEGISLATION FACTSHEET AQA The nature of law and the English legal system EBradbury.com The Advantages and Disadvantages of Delegated Legislation There are many advantages and disadvantages of delegated legislation. Some are general and some more specific e.g. you can evaluate the specific parliamentary controls or the general advantage that is saves parliament time. Advantages Disadvantages v It saves Parliament time. v It is undemocratic to allow others to make laws. v Parliament does not have the expert knowledge to make certain laws. v Scrutiny of such a large amount of delegated legislation is difficult. v Laws can be made in an emergency. v Lack of public knowledge of these v Delegated laws can be easily laws. revoked if they are not working. v The parliamentary controls are not v Laws can be changed quickly and always effective. when necessary. Page 7