Why is it necessary to have controls over delegated legislation? Are the present controls satisfactory?

Written by Paul Gomm (March 2005)

Introduction - What is Legislation and How is it passed?

Legislation is law that is made by the government or with the governments given authority. It is passed through both Houses of Parliament and the reigning monarch. Legislation starts life as a Bill. The Bill is read out in the House of Commons (normally however it can begin in the House of Lords and finish in the Commons) through a formal procedure whereby it is voted upon by the Members of Parliament. The Bill will go through three readings within the House of Commons. It will also need to go through the Committee Stage where the bill is examined by committee members (made up of between 16 and 50 MP?s with specific interest or knowledge of the subject). This is called a Standing Committee although it may also take place in a Committee of the Whole House. The Committee makes recommended amendments which are voted upon by Parliament. The Bill will then go to the House of Lords and through the same procedure within this house. The House of Lords will also make amendments for the Bill. The House of Lords have not always agreed with government proposals (as seen with the Fox Hunting Ban 2005) and therefore if the Government is unable to get the Bill they want they may force the Bill through using the Parliament Act 1949. The House of Lords always use to agree with any Bill which had been on the Governments manifesto under the Salisbury Doctrine.

Once passed the Bill goes to Royal Assent where it is signed by the Monarch (well vary rare, usually signed by her staff/advisors).

Delegated Legislation however is different as it is not passed by the Government but on the Governments behalf by other bodies.

What is Delegated Legislation?

Delegated Legislation or "The New Despotism" as described by Lord Hewart is legislation which has been made by a subordinate body authorised to legislate by an act of Parliament. The authority will be normally laid down is an Enabling Act known sometimes as a ?Parent Act?. This will set out the framework of the law and then delegate power to other bodies. These other bodies can then make the law upon this particular area more detailed and precise. So therefore certain individual or institutions be acting under legislative power which has been granted by the government. Legislative power within Parliament will also be unlimited while the power of those ?delegated legislators? will be limited. Also and legislation passed by Parliament will be unable to be annulled by the courts. This however is not the case for delegated legislation. Delegated legislation will be placed under judicial review under different circumstances. Acts which have been passes under delegated legislation include the 1974 Health and Safety at Work Act.

Different types of Delegated Legislation

There are three different types of delegated legislation. These are Statutory Instruments, Orders in Council and Bylaws. These different types mean that delegated legislation will be used in different circumstances and situations under the powers delegated.

Statutory Instruments

Statutory Instruments refer to Ministers and Government Departments who are given powers to make regulations over areas which they are responsible for. Therefore Ministers such as the Lord Chancellor have the power to govern over regulations for different areas of law such as legal aid. These rules and regulations will be there to affect the whole of the nation. A large amount of statutory instruments are brought in each year, many of which we will have no knowledge about. There are currently approximately 3000 a year*.

Orders in Council

The second type of delegated legislation is known as Orders in Council. Under this form the Queen along with the Privy Council are allowed to make laws under special circumstances. This will be if the country is in a time of war (such as WWII) and also if the Parliament is not sitting at the current time when a law is necessary to be passed. The Queen and Privy Council have been granted these powers due to the Emergency Powers Act 1920. But due to the special circumstances you will find that laws made under this form of delegated legislation are often very rare.

Bylaws

The final type of delegated legislation available is known as Bylaws. Bylaws are issued by the numerous local authorities around the UK. They are therefore locally based regulations and can only be used with in the jurisdiction of the council which has issued them. So therefore any council may issue a bylaw, with permission which will affect their whole county (i.e. Surrey County Council bylaws would effect the whole of Surrey County). Towns may also make by laws but these will only affect their own town.

The power also extends to public bodies and companies. They may make bylaws for matters which are involved with jurisdiction of their organisation. This must however involve the public as well. Therefore a company has the right to ban such actions such as smoking and drinking upon their premises.

However the government are careful with who they delegate powers of legislation to. This is because the organisation may end up undermining the authority of Parliament. Therefore it is usually found that these powers will only be granted to those who are deemed as being accountable to the Government and Parliament.

What is the need for delegated legislation?

So what is the need for delegated legislation? There are a number of reasons why the UK currently uses delegated legislation. The main reason is because by using delegated legislation, a large amount of Parliamentary time and effort is saved. As Parliamentary time and effort is already limited it would be very difficult for Parliament to be able to enact all the rules and regulations which are needed within a modern society. With delegated legislation this problem is taken away as another body is dealing with the details within the legislation which leaves the Parliament to make major policy legislation and concern themselves with important debates within the two houses. Remember if there are approximately 3000 statutory instruments each year (without including even the bylaws) this will take away a large amount of parliamentary time.
Delegated legislation also allows experts to deal with complex and technical points within the legislation. By doing so the experts have knowledge within a particular field of expertise and are therefore able to place their knowledge into the relevant piece of legislation. This helps overall make the regulations more effective over a longer period of time.

Delegated legislation also allows the law to keep up with social and technological changes. To do this the law must be amended and revoked frequently. This helps to keep the law up-to date and means that our legal system is a much more modern system. In many cases it will take too long to amend an Act of Parliament as doing so is a long and complex task. Therefore it is much easier to amend any delegated legislation.

The use of delegated legislation also allows ministers to place forward any feelings which they have upon a particular subject. They have the benefit of being able to consult with those drawing up the Bill and can therefore influence in some way the drafting.

The final need for delegated legislation is that it allows the local authorities (and certain organisations such as the Rail services) to issue legislation which is based upon the local (or in organisations cases, institutional) needs. This means that there will therefore be variations between different areas but these are needed as they will be based upon the needs of the people within the area. You may see this through differences upon regulations such as Parking or Dog Fowling within different local boroughs.

Controls over Delegated Legislation/Supervision

There are four main controls over delegated legislation which break down into subdivisions. The first form of control is Parliamentary control.

Parliamentary Control

Parliamentary control is fairly limited, but there is still control over the delegated legislation. To be a responsible Parliament they must use some of their time monitoring the delegated legislation. They have spent time delegating powers so therefore it is necessary that monitor the use of the delegated legislation. Without doing so the delegation will become abdication. Some of parliaments initial control comes from the ?Parent? act or enabling act which is set out before legislation can be made. This will set out the parameters within which the delegated legislation can operate or be made.

Enabling Acts may contain the following affirmation processes within them. The first is known as Affirmative resolutions/Positive affirmation. This process involves Parliament implementing a section which states that a statutory instrument will only be able to become delegated legislation if it is approved by a positive resolution within Parliament. However this form of affirmation is often rare and many Parliaments will instead opt for the Negative Resolution/negative affirmation phase. This means that delegated legislation shall only come into force if the statutory instrument has not been annulled by a negative resolution in Parliament within 40 days of the Bill first being placed forward. However there is often a problem with this as many MP?s will not know which regulations are in the process of negative affirmation so they do not appeal to the Bill. Therefore often bills which are not wanted are passed. This can be seen when the UK converted from the traditional imperial system of weights and measures to the new Metric system. Many MP?s did not appeal as they did not have any knowledge that this statutory instrument was in the process of negative affirmation.

Parliament also have another method of control known as the Joint Select Committee on Statutory Instruments. This is normally known as the ?Scrutiny Committee?. The scrutiny committees job is to review the technical merits of a drafted legislation. They will then refer/ draw attention to certain aspects which give cause for concern to Parliament. The main ground for referral is whether the legislation is within the powers granted by Parliament (known as ?intra vires - ?Within the power?). However they may also refer if it is felt that the legislation imposes as tax or a charge (only elected bodies may do this), has an effect which was not provided in the enabling act or the act is unclear or defective.

Control by the Courts

The courts under the form of judicial review have the right to review the validity of delegated legislation. They are delegated this power by the government. If the courts feel that the legislation goes beyond the powers which have been granted by Parliament which have been set out in the enabling/ parent act they have the right to rule that the delegated legislation is Ultra Vires. Therefore the delegated legislation will be made void and will therefore be annulled making the legislation ineffective. There are two forms of ultra vires which the courts may consider. These are Substantive Ultra Vires which is where the subject matter is considered to be outside of the original enabling act and power. The second form is known as Procedural Ultra Vires and is where the subject matter is within the enabling act but there has been a failure to follow the mandatory procedure which is required.

The courts also have the power to annul the act therefore making it void if it is considered to bee ?incompatible with conventions which are within the Human rights Act 1998?. It is not only the courts who may bring a claim of this forward though. Under locus standi - a person who will be directly affected by the decision may bring forward a claim.

Consultation

Consultation can fall into two categories, direct and indirect. When creating the enabling Act there can be powers granted to make the person who has been granted powers to consult the relevant Ministers before they are exercised. The enabling Act will say who needs to be consulted and it may only require them to seek a small amount of consultation. Consultation is generally just a matter of routine. Direct Consultation requires a public exercise of the power, where as indirect makes it possible to form the basis for a judicial challenge.

Publication (By Control)

Under publication a notice of any bylaw must be placed within the local press and there must also be a copy which is available for public inspection. Public Inspection must be available at the local authority office and it should be on sale for no more than 20p. However it is often found that this regulation is flouted and copies sold for higher prices or even not available to buy.

The need for delegated legislation

There are a number of reasons why there needs to be controls over the creation of delegated. Firstly we must remember that delegated legislation can be made by non elected people instead of those of the elected representative of the House of Commons. Therefore in some circumstances the system can be seen as being un-democratic as decisions are being made by people who are not elected within our representative democracy. Therefore controls need to be kept over these bodies to make sure they do not breach or abuse their powers. In some circumstances this can be seen as working as under bylaws the local authorities are actually elected bodies and are accountable to members of their local area. This is also true when ministers are used within the creation of delegated legislation as they will be members of the elected representative government.

Controls are also needed as the making of delegated legislation are often created by people at a lower level of authority. This can therefore mean that there is a risk of sub-delegation within the creation of delegated legislation. People may feel that giving the opportunity to make law to civil servants is not within their interests and it is therefore necessary that the government has the control to revoke and amend delegated legislation easier than that of an Act of Parliament.
There is also a very large amount of delegated legislation floating around within legal books and acts. It is therefore necessary to have controls over it so that the legislation may be revoked and amended. Controls over this also mean that we can compile legislation into one document which will make it easier to understand.

Since delegated legislation does not undergo much publicity there is another reason why controls are necessary. Without controls over the legislation many people would find legislation passed which affects them, but which they had not known about. Therefore it is essential to make it more public. Under publication control this is the case with delegated legislation passed under bylaws. This allows for the publication of bylaws within local press so that citizens are aware of any changes which are undergone.
Finally there is a need for control as many delegated legislation uses obscure wording like Acts of Parliament. Therefore with controls it helps to make sure that wording is less obscure and Parliament are able to amend the legislation. This makes it overall easier to understand and helps to make the regulations within law easier to understand.

Are the Present Controls Satisfactory?

Presently certain controls are satisfactory. This can be seen as the courts have the right to annul legislation under the grounds of ultra vires. These controls are good as they allow the courts to show their disapproval of certain acts and if necessary have them revoked.

However I feel that the current controls of the Scrutinising Committee are very low. They do not have the power to change any legislation or revoke it, but simply to report on it. Also as shown in the 1992 report by the Hansard Society, it was found that even the most critical findings by the Committee were often ignored by Ministers. This meant that there may have been absolutely no change to the legislation which could have been extremely important.

Currently I feel Parliamentary controls are reasonably satisfactory. However in the case of negative resolutions I feel that currently MP?s are not given enough notification of delegated legislation which is aimed at being passed. Therefore many will not notify constituents who are therefore unable to voice their views and opinions through their elected representative within Parliament.
Therefore in certain circumstances the current control over delegated legislation is not as satisfactory as it could be and possibly reforms need to be made.

Conclusion

In conclusion I feel that many controls over delegated legislation are reasonably satisfactory. However it is obvious that in some ways there are possible changes which need to be made. For a start MP?s need to be given more notification of statutory instruments which are in the process of negative affirmation. This would stop problems occurring like with the change in the type of weights and measurements used.

I also feel that it would be quite important that delegated legislation is not allowed to be made by members who are not of the elected representative. This would mean that people would not feel that bodies with no knowledge of a particular area are making legislation.

Overall however I feel that the controls are reasonable and therefore if a few changes are made this would help just to make the legal system more solid and safe.

Paul Gomm (March 2005).

Bibliography

The English Legal System 3rd Edition by Martin J. Hodder & Stoughton 2002
A-Z Law Handbook 3rd Edition by Martin J and Gibbins M Hodder & Stoughton 2003
A Level Law 4th Edition by Dungale AM., Bermingham VM., Furmston MP., Jones SP. & Sherrin CH. Butterworths LexisNexis 2002
A Level & AS Level Law 2nd Edition by Hunt M. Thomson Sweet & Maxwell Pub. 2003
www.parliament.uk/works/newlaw.cfm
http://members.lycos.co.uk/lawnet/DELLEG.HTM

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