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

Written by Kayleigh Gregory

Delegated legislation is law made by another body other than Parliament but with the authority of Parliament. Statutes passed by Parliament contain the basic framework of the law, this act will usually contain an enabling Act which delegates the power to others to make more detailed law in that area. An example of this is the Access to Justice Act 1999 which includes an enabling Act that delegate's power to the Lord Chancellor to alter various aspects of the legal funding schemes. Another example can be seen in the Disability Discrimination Act 1995 which contained an enabling Act that delegated power to the Secretary of State to make regulations on points involving employment and the provision of services. The other bodies that are delegated the power are usually government departments, public or nationalised bodies or local authorities. There are three main types of delegated legislation. These are statutory instruments, bylaws and orders in council.

Statutory instruments (SI)

These are made by Ministers and Government departments as they have been given the authority to make regulations for areas under their particular area of responsibility. This is a major method of law making. There are approximately 3000 statutory instruments brought into force each year.

Bylaws

These can be made by local authorities. In this case the law brought in place for a specific area. Bylaws mainly concern traffic and parking within a certain district or town. Bylaws can also be made by public and nationalised bodies for matters within their jurisdiction which involves the public. An example of this type of bylaw would be the smoking ban on the London Underground System. All bylaws must be approved by central Government.

Orders in Council

Under the Emergency Powers Act 1920, the Queen and the Privvy Council have the authority to make Orders in Council in times of emergency when Parliament is not sitting. They would be drafted by the relevant Government department, approved by the Privvy Council and signed by the Queen.

Delegated legislation is an extremely important source of law because it involves rules which will affect the day to day running of lots of people's lives. As delegated legislation is made by non-elected bodies and there are so many with the power to make delegated legislation it only makes sense that what legislation is made should be controlled. There are several ways in which delegated legislation is controlled. The main ways are supervision by parliament and supervision by the courts.

Supervision by Parliament

Obviously, parliament has the initial control with the enabling Act which sets out in which situation delegated legislation is to be made. Parliamentary sovereignty means that parliament has the power to revoke a piece of delegated legislation at any time or they can pass legislation on the same subject.

In order to control statutory instruments there are two procedures. There is a procedure called the affirmative resolution procedure. This is when a statutory instrument must be shown in front of both houses of parliament and only becomes law if both houses approve it within a specified time limit. This time limit is usually 28 or 40 days. In order to be approved a vote must be taken so this means that parliament must set time aside for debate. According to 'AS Law by Elliott & Quinn 'it is very rare for the Government not to achieve a majority when such votes are taken'. There is a very small amount of statutory instruments which will be subject to this and the need for this will be stated in the enabling Act. There is another procedure used by Parliament in order to control delegated legislation. This is called the negative resolution procedure. A large number of statutory instruments will be subject to this. The statutory instrument is put to Parliament and within a specific amount of time they can make an annulment against the delegated legislation. This annulment motion is then debate and if it is agreed, the legislation can be invalid. If however, there is not an annulment motion, the delegated legislation will be made law after the time of limit, which is stated in 'The English Legal System' by J. Martin to be 40 days.

Parliament have a scrutiny committee that watches over the making of delegated legislation and writes reports to each houses of parliament containing information about any delegated legislation they feel will need special consideration. However the committee can only refer a statutory instrument back to a house of parliament on the grounds that it imposes a tax or charge, it has a retrospective effect which was not provided for by the enabling Act, it has exceeded the powers given by the enabling Act or it is unclear or defective in some way. The committee has no power to alter any statutory instruments, just simply report on its findings.

Publication is also a method to control legislation, as the legislation would be available for the public to see and comment.

Consultation plays a part in controlling delegated legislation because those who make the delegated legislation usually consult experts within the particular field and those bodies that are likely to be affected by the legislation. For example, under the National Insurance Act 1946, any draft regulations have to be sent to the National Insurance Advisory Committee.

Control by the courts (judicial review)

Courts can challenge delegated legislation on the grounds that it is ultra vires. There are two situations in which legislation can be ultra virus. Firstly, a piece of delegated legislation can be ruled ultra vires if the body who created it acted out of their powers that were granted to them by parliament in the enabling Act. This type is known as substantial ultra vires. Any legislation that is ruled ultra vires is void and not effective. This was illustrated in the R v Home secretary, ex parte fire brigades union. In this case the Home secretary had made alterations to the Criminal Injuries Compensation scheme but had exceeded the power granted to him in the Criminal Justice Act 1988. Secondly, delegated legislation can be ruled ultra vires if the correct procedures have not been followed. This is known as procedural ultra vires. An example of this was in the Aylesbury mushroom case (1972) when not all organisations that would be affected by the delegated legislation were informed. This made that piece of delegated legislation ultra vires. Statutory instruments can also be made void if they conflict with European law.

Criticisms of controls over delegated legislation

Supervising delegated legislation is very difficult. Publication has limited affects because few people actually know about delegated legislation and where to find it. Even at this point, most people do not know on what ground you can challenge it and how to go about it. This then has big effect on the controls the courts have over delegated legislation because judicial reviews relies on individual challenges being brought before the court. It will go unnoticed, sometimes for years, until it affects someone who is prepared to challenge it. The main effect of this will then be on those who a piece of legislation may largely affect, who are unaware of their rights and sometimes do not have the financial capability to go to court and challenge it.

Another problem with delegated legislation is that some enabling Acts can be ambiguous and leaving open for a wide interpretation. This giving power to the Ministers and leaving little room for the legislation to be ruled ultra vires in judicial review. The enabling Act might include a phrase such as, 'the minister may make such regulations as he sees fit for the purpose of bringing the Act into operation'.

Even parliamentary controls have criticisms and this is the main method of controlling delegated legislation. Affirmative resolutions mean that parliament gets to see important legislation (which is a good thing) but it is almost impossible to prevent any legislation getting passed. The Scrutiny committee have been able to secure some changes in legislation but on the whole has no real power. The committee is unable to consider the merits of legislation and their reports have no real binding effect.

The controls over delegated legislation must be satisfactory because there has been no major problems or disasters so far. The methods of control should be reformed to be more effective. For example, delegated legislation should be made more accessible to the public, the people who the delegated legislation is affecting.

In my opinion, there shouldn't be any delegated legislation. Parliament is the main and supreme law making body in Britain and law making should be kept to parliament and its departments. Delegated legislation obviously isn't very effective because there wouldn't be the need for these controls, yet alone criticised controls, if it were fully effective. As stated in 'AS Law' by Elliott & Quinn 'Delegated legislation is sometimes made by people other than those that were given the original power to do so'. Doesn't this make you wonder, who is making the British law that we are abiding by today?

Kayleigh Gregory.

March 2004.

Please note that I have reservations about the argument of Kayleigh that there should not be any delegated legisation. Indeed, Parliament would find it more or less impossible to establish the time to fully debate and approve legislation. It should also be noted that delegated legislation is currently used for the introducation into UK law of EU directives.

Despite these reservations, I do think this is an interesting essay. Dr Peter Jepson.