7 Key excerpts on "Delegated Legislation"

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  eBook - ePub

  English Legal System

  • Jacqueline Martin(Author)
  • 2014(Publication Date)
  • Routledge

    (Publisher)

  Delegated Legislation is law made by a body other than Parliament, but with Parliament’s authority. That authority is given in a parent or enabling Act. 3.5.1  Types of Delegated Legislation

  1     Orders in Council – made by the Queen and Privy Council. These can be made when Parliament is not sitting, under the with Civil Contingencies Act 2004. There is also power to give effect to EU law under the European Communities Act 1972.

  2     Statutory instruments – made by Government Ministers. This is the most used type of Delegated Legislation.

  3     Local authority by-laws – made by local councils in respect of matters in their area.

  4     By-laws made by public corporations – made to regulate behaviour in such areas as London Underground.

  5     Court rules – made by Court Rules Committees in respect of the various courts and their procedures.

  3.5.2  Need for Delegated Legislation

  1     There is a lack of parliamentary time for considering all necessary regulations.

  2     It allows more detail to be included than is possible in an Act of Parliament.

  3     There is expertise for matters requiring technical knowledge.

  4     There is local knowledge for local by-laws.

  5     It allows more time for consultation.

  6     It is easier to amend than an Act of Parliament.

  3.5.3  Control of Delegated Legislation

  Parliamentary	Judicial
  Enabling Act sets parameters	Can be challenged in the courts under the doctrine of ultra vires
  Affirmative resolution requires parliamentary vote	This can be: •  substantive; or •  procedural
  Negative resolution allows a debate to be requested	If found to be ultra vires, the legislation can be declared void
  Delegated Powers Scrutiny Committee reports to House of Lords
  Joint Select Committee reviews statutory instruments
  Ministers can be questioned

  1     Parliament sets the parameters for the Delegated Legislation in the enabling Act.

  2

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  Law for Project Managers

  • David Wright(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  So once the Act is in place the civil servants can move in. Sometimes they may issue literally dozens of statutory instruments under a particular Act. Delegated Legislation allows for speed and flexibility and can deal with the detail. It allows the Act to be expanded into detailed sets of rules that can be applied to many different real-life situations. Its disadvantage is that the national assembly loses control to the executive or to local government, which drafts the bill/Act and then writes and issues the Delegated Legislation. In the UK there are usually some 3,000 to 4,000 statutory instruments created every year. The number of by-laws created each year is not recorded (but will certainly run into several thousand).

  In addition many statutes are also backed up by ‘codes of practice’. Sometimes codes may be legally binding – with the status of Delegated Legislation. More often they are not, with the result that they would then be simply one form of the self-regulation of an industry, or a statement of ‘good engineering practice’.

  What legislation means

  All this is very well. We have the primary legislation, in England an Act of Parliament, and we have secondary legislation, a statutory instrument or a by-law. We can read the text and so we know what they say. If we know what the words say then we must know what the law is. At least that is the theory. In practice, however, it is not that easy, until the law has been around for some time.

  What still has to happen is the third stage of legislation, interpretation of the legislation by the judges, when the new law begins to be applied to real life situations. Of course judges do not make law when this happens, but they do explain what it means. In practice there will often be some element of interpretation required and it is the judges who provide that interpretation. Sometimes the judges may even point out that the words of the legislation do not actually mean what parliament intended them to mean at all. The classic example in recent years was the Dangerous Dogs Act of 1991, which failed totally in its stated objectives when it reached the courts and judges in case after case pointed out that the words of the Act were so badly drafted that it was unusable.

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  Optimize English Legal System

  • Angela Stanhope, Odette Hutchinson(Authors)
  • 2014(Publication Date)
  • Routledge

    (Publisher)

  Parent Act .

  The significance of secondary legislation

  Secondary legislation is particularly important in the modern English legal system, because the volume of Delegated Legislation far exceeds the production of primary legislation by Parliament. There are several thousand pieces of secondary legislation enacted each year.

  There are a number of different types of Delegated Legislation, each of which has its own strengths and weaknesses.

  Advantages of Delegated Legislation

  Time saving

  Speed

  Utilising particular expertise or particular local knowledge

  Flexibility

  Disadvantages of Delegated Legislation

  Accountability

  Undemocratic

  Scrutiny

  Bulk

  Sub-delegation

  Control over Delegated Legislation

  Common Pitfall

  Students answering questions on Delegated Legislation frequently remember to consider the advantages and disadvantages of Delegated Legislation. However, they seldom address the critical issue of control over Delegated Legislation. Remembering to include this in your answer will ‘round off’ your essay well. For more marks you might want to consider how effective these controls are.

  The critical question in relation to Delegated Legislation, is in relation to controls over it.

  Parliamentary control

  New Delegated Legislation is laid before Parliament before coming into force.

  Some provisions require positive resolution before they become law; that is, they must be placed before the House of Commons and the House of Lords.

  Most Delegated Legislation requires negative resolution

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  Essential GCSE Law

  • Kenny Chin(Author)
  • 2014(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  Parliament may anticipate possible growth in the subject matter and some practical difficulties in implementing the law, but it does not always know exactly what they are. Therefore, some details and room for future additions are left to those who administer the law. By using statutory instruments, administrators can add and amend necessary details efficiently. Further, when a piece of law becomes obsolete, unfair or unworkable, statutory instrument can change the problem situation much quicker than the more rigid parliamentary legislation. An Act is still the law unless it is repealed by another statute and the enactment can be a long process, especially to those who are affected by an obsolete law.

  Urgency Parliament is not always in session and, even when it is, legislative procedures are slow. In the event of an emergency, Delegated Legislation is the best means of dealing with the situation quickly. Locality

  Local knowledge is sometimes required when rules and bylaws are needed for a particular area. The details of such rules are left to the local administrators. Common examples of this are regulations concerning parking control in a particular district, including parking tariffs and levels of fine against illegal parking. Next time you see a parking ticket, try to identify the enabling Act and the name of the local regulation.

  Control of Delegated Legislation By Parliament

  • Many enabling Acts contain certain provisions requiring Delegated Legislation to be laid before Parliament. This is a means for Parliament to retain its right to inspect, approve or disapprove laws which are made under the delegated authority.
  • The Joint Committee on Statutory Instruments was set up in 1974. Its role is to scrutinise and, when appropriate, draw the House’s attention to certain rules and regulations made. It also has the power to demand an explanation from relevant government departments.
  • The responsible minister may be questioned during the House of Commons’ Question Time on matters relating to law made by Delegated Legislation.
  • Law making powers are granted by Parliament, which can also revoke and vary the delegated power by passing another Act. This is the ultimate control.

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  English Legal System

  • Ryan Murphy, Frances Burton(Authors)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  Chapter 5 Law-making in the English Legal System II – delegated (secondary) legislation

  Introduction

  If, as discussed in the previous chapter, primary law sets out the framework of the legal system then secondary legislation is designed to flesh out the detailed rules and enables the decisions that operate under that framework to be taken. Alternatively called delegated or subordinate legislation, secondary legislation is the exercise of law-making powers under the authority and control of Parliament.

  Such Delegated Legislation is an increasingly important part of a legal system that operates in the context of expansive government activity and of complex and technical regulatory environments. From tax to the control of public spaces, from the setting of constituency boundaries to the powers of professional bodies, secondary legislation affects all aspects of the legal (and political) system.

  This chapter will explore the different forms of Delegated Legislation and how they are made. More importantly, the chapter will examine the extent of powers that can be exercised under and through secondary legislation and how that power is controlled by various actors within the legal system. A major theme of this chapter is how secondary legislation is scrutinised both within and outside of Parliament.

  As you read

  Think about the different forms of secondary legislation and the different purposes they may be trying to achieve. From the examples given, consider whether the different forms of secondary legislation achieve those purposes. Assess the effectiveness of the methods of scrutiny and how these methods interact with each other and how they might be improved.

  Consider the different roles of Parliament, the executive and the judiciary in formulating and scrutinising secondary legislation.

  Figure 5.1

  Nature and scope of secondary legislation

  This textbook presents, for reasons of efficacy, primary legislation (i.e. Acts of Parliament) in a distinct chapter from secondary legislation. However, they should not be viewed as wholly separate instruments but rather as interacting and complementary forms of legislation. Primary legislation sets down principles and secondary legislation attempts to achieve the detailed implementation of those principles. Primary legislation is like the rigid skeleton of the English Legal System1

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  Delegation of Powers in the EU Legal System

  • Annalisa Volpato(Author)
  • 2022(Publication Date)
  • Routledge

    (Publisher)

  14

  13 Magarò, 2119.

  14 Ross, 4. The author summarises the reasons for the success of legislative delegation as follows: (i) pressure on parliamentary time, (ii) technicality of the subject matter, (iii) unforeseen contingencies, (iv) flexibility, (v) opportunity for experiment, and (vi) emergency powers.

  3. Delegation of powers as a distinct legal mechanism

  3.1. Different forms of delegation in public law

  Against this historical background, different categories of delegation have emerged.15 In Italian legal literature, for instance, authors have made a fundamental distinction between administrative delegation and legislative delegation.16 Both forms of delegation have been analysed extensively in specific studies,17 which have pointed out the difference in the two notions and in the principles applying to them.

  15 Gautier, 49.

  16 A similar differentiation is known also in other legal systems, such as the French one, see Gautier, 44.

  17 On the administrative delegation, see Franchini; Fabio Roversi-Monaco, La delegazione amministrativa nel quadro dell’ordinamento regionale (Giuffré, 1970); Piero Sacco, Il profilo della delegazione amministrativa (Giuffré, 1970). On the legislative delegation, see Egidio Tosato, Le leggi di delegazione

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  The Legislative Process in Great Britain

  • S. A. Walkland(Author)
  • 2021(Publication Date)
  • Routledge

    (Publisher)

  Partly because the Public General Act was identified with the ‘rule of law’ (although much that has been done by its agency would not have met with Dicey’s approval), and, to the same extent, supported formal-legal concepts of the legislative sovereignty of Parliament, it has been regarded as the normal end-product of the legislative process, from which Ministerial legislation is a distinctly inferior, temporary derogation, suspected by right-wing lawyers, at least, of containing the seeds of the overthrow of responsible government in Britain. 14 Yet the practice is by no means new, although the present huge volume of Departmental legislation is mainly a post-1945 phenomenon. A number of Victorian statutes delegated lawmaking powers to public authorities. Most statutes of a regulatory type, usually Public Health and Factory Acts, contained wide enabling clauses. 15 The main impetus to Departmental legislation, however, was given in this century by two world wars, when very wide public control of employment, production and the economy generally was instituted. After 1945 the growth of the Welfare State and the managed economy also greatly extended the areas of government contact with national life. Yet despite the rapid growth in the volume of subordinate legislation and its importance in the regulatory roles of government, official enquiries into the place of statutory powers to make regulations in the legislative process have never directly recognized their potential. Instead the investigations have been almost entirely negatively conceived, concerned mainly with confining the scope of the process and improving judicial and Parliamentary controls over it

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