Delegated Legislation

Transcription

1 Delegated Legislation What is Delegated Legislation? Delegated Legislation is law made by a body other than Parliament. Parliament gives others the power to pass delegated legislation in a parent or enabling Act. Act of Parliament (Statutes): This is aka Primary Legislation Delegated Legislation (i.e. statutory Instruments): This is aka Secondary Legislation Name the types of Delegated Legislation-Explain each There are three types of Delegated Legislation 1. Orders in Council 2. Statutory Instruments 3. By-Laws Orders of Councils The Queen and the Privy Council have the authority to make orders in Council. The Privy Council is made up of the Prime Minister and other leading members of government. This allows the Government to make legislation without going through Parliament. Statutory Instruments The term statutory instruments refers to rules and regulations made by Government Ministers. Ministers and Governments are given the power to make regulations for areas under their particular responsibility. The Legislative and regulatory Reform Act 2006 gives Ministers power to make nay provision by order if it will remove or reduce a problem resulting from legislation, e.g. a financial cost. This means that Ministers can change Acts of Parliament even though the original Act did not give them the power to do this. about 3000 per year Bylaws made by government departments e.g. Access to Justice Act 1999 Bylaws can be made by local authorities to cover matters within their own areas.

2 Many local Bylaws will involve traffic control, such as parking restrictions. Bylaws can be made by public corporations and companies for matters within their own control which involve the public, e.g. the smoking ban on the London Underground system. How are Delegated Legislation controlled i.e. what are its controls? In many cases delegated legislation is made by non-elected bodies and, since there are so many people with the power to make delegated legislation, it is important that there should be some control over this. Control is applied by parliament and by the courts. In addition there may sometimes be a public inquiry before a law is passed on, especially if it involves a sensitive matter such as planning laws which may affect the environment. What is meant by Control by Parliament This is fairly limited, though obviously Parliament has the initial control with the enabling Act which sets the boundaries within which the delegated legislation is to be made. In addition, a delegated Powers Scrutiny Committee was established in 1993 in the House of Lords to consider whether the provisions of any Bills delegated legislative power inappropriately. It reports its findings to the House of Lords before the committee stage of the Bill, but has no power to amend Bills. The main problem is that there is no general provision that the regulations made under the enabling Act have to be laid before parliament for the Mps to consider them. However a few enabling Acts will say this has to happen. What are affirmative Resolutions A small number of statutory instruments will be subject to an affirmative resolution. This means that the statutory instrument will not become law unless specifically approved by Parliament. The need for an affirmative resolution will be included in the enabling Act. For example, an affirmative resolution is required before new or revised Police Codes of Practice under the Police and criminal Act 1984 can come into force. A disadvantage of the procedure is that parliament cannot amend the statutory instrument, it can only be approved, annulled or withdrawn. What are negative Resolutions Most other statutory instruments will be subject to a negative resolution, which means that the relevant statutory instrument will be law unless rejected by Parliament within 40 days.

3 Individual Ministers may also be questioned by Mps in Parliament on the work of their departments, and this can include questions about proposed regulations. What is role of the Scrutiny Committee? A more effective check is the existence of a Joint Select Committee on Statutory Instruments (formed in 1973, usually called the scrutiny committee. This committee reviews all statutory instruments and where necessary, will draw attention of both Houses of Parliament points that need further consideration. However the review is a technical one and not based on policy. The main grounds for referring a statutory instrument back to the Houses of Parliament are that: It imposes a tax or charge; this is because only an elected body has such a right. It appears to have retrospective effect which was not provided for by the enabling Act. It appears to have gone beyond the powers given under the enabling legislation or it makes some unusual or unexpected use of those powers. It is unclear or defective in some way. The Scrutiny Committee can only report back its findings; it has no power to alter any statutory instrument. The Legislative and Regulatory Reform Act 2006 Not too important This Act sets out the procedure for the making of statutory instruments which are aimed at repealing an existing law in order to remove a burden Under s 13 of the Act, the minister making the statutory instrument must consult various people and organisations. These include: Organisations which are representative of interest substantially affected by the proposals. The welsh assembly in relations to matters upon which the Assembly exercises functions. The Law commission, where appropriate. Orders made under this power of this Act must be laid before Parliament. There are three possible procedures: 1. Negative resolution procedure: where the Minister recommends that this procedure should be used, it will be used unless within 40 days one if the Houses of Parliament objects to this. 2. Affirmative resolution procedure: this requires both Houses of Parliament to approve the order, even thought the Minister has recommended this procedure, parliament can still require the super affirmative resolution procedure to be used.

4 3. Super affirmative resolution procedure: under this the Minister must have regard to: Any representations Any resolution of either House of parliament Any recommendations by a committee of either House of Parliament who are asked to report on the draft order. This super affirmative resolution procedure gives parliament more control over delegated legislation made under the Legislative and Regulatory Reform Act It is vital that this is the position as the Act gives Ministers very wide powers to amend Acts of Parliament What is meant by control by the Courts? Delegated legislation can be challenged in the courts on the ground that it is ultra vires (it goes beyond the powers that Parliament granted in the enabling Act). This challenge can be made through the judicial review procedure or it may arise in a civil claim between two parties. What is substantive Ultra Vires? Any delegated legislation which is ruled to be ultra vires is void and not effective. This was shown by R v Home Secretary, ex parte Fire Brigades Union 1995 where changes made by the home secretary to the Criminal Injuries compensation scheme were held to have gone beyond the power given to him in the criminal Justice Act. The court will assume that (unless the enabling Act allows it) there is no power to:- make unreasonable regulations charge taxes allow sub delegation (handed down another level) What is procedural Ultra Vires? The court can hold that delegated legislation is ultra vires if the correct procedure has not been followed. For example the Aylesbury Mushroom case in 1972 where the agriculture minister did not consult the mushroom growers ascocisation which the enabling act required. What is unreasonableness? Lord Diplock in Wednesbury stated that te department/minister makes a such a decision that no other public body would come to such a concluion Strickland Hayes is an example of this. Statutory instruments can also be declared void if they conflict with European Union legislation.

5 Name some advantages/needs of Delegated Legislation Delegated legislation is law made by a body or an individual underneath Parliament, but with the authority of the parliament. The authority is given in an Enabling/Parent Act. 1. In order to reduce pressure on parliamentary time, Acts of Parliament often give government ministers or other authorities the power to regulate administrative details by means of 'delegated' or secondary legislation. This mostly takes the form of Orders in Council, Regulations and Rules known as Statutory Instruments. Parliament does not have the time to consider and debate every small detail of complex regulations hence giving the authority to a body/individual under them. 2. Also Parliament may not have the necessary technical expertise or knowledge required, for example health and safety regulations in different industries need expert knowledge, while local parking regulations need local knowledge also. Modern society has become very complicated and technical, so that it is impossible for members of Parliament to have all knowledge needed to draw up laws on controlling technology, ensuring environmental safety, dealing with various industrial problems or operating complex taxation schemes. It is thought that it is better for parliament to debate the main principles thoroughly, but leave the detail to be filled in by those who have expert knowledge of it. 3. Ministers can have the benefit of further consultation before regulations are drawn up. Consultation is particularly important for rules on technical matters, where it is necessary to make sure that the regulations are technically accurate and practical. Some Acts that are giving the power to make delegated legislation set out that there must be consultation, before the regulations are created. For example, before any new or revised police Code of practice under the Police and Criminal Evidence Act 1984 is issued there must be consultation with a wide range of people. 4. The process of passing an Act of parliament can take a substantial amount of time and in an emergency. Parliament may not be able to pass law quickly enough. This is another reason why delegated legislation is sometimes preferred. It can also be amended or retracted easily when necessary, so that the law can be kept up to date, and Ministers can respond to new or unexpected situations by amending or developing the statutory instruments. What are the disadvantages/criticisms of Delegated Legislation 1. The main criticism is that it takes law-making away from the democratically elected House of Commons. This allows non-elected people to make law.

6 This is acceptable provided there is sufficient control but, as already seen; Parliament s control is fairly limited. This criticism cannot be made of bylaws made by local authorities since these are elected by local citizens. 2. Another problem is that of sub-delegation. This means that the law making authority is handed down another level. Sub delegation causes comments that much of our law is made by civil servants and are just rubber stamped by the elected Ministers 3. The considerable volume of delegated legislation also generates criticism as it makes it difficult to discover what the present law is. This problem is provoked by a lack of publicity, as much delegated legislation is made in private in contrast to the public debates of Parliament. 4. Finally, delegated legislation shares the same problems with the Acts of Parliament. unclear wording that can lead to difficulty in understanding the law.