Written by Lisa Incledon (AS Law)
Statutes are legislation made by Parliament, and need the consent of the House of Commons and the House of Lords, as well as the Monarch before they become law. Before Bills are introduced into Parliament they will go through a green and white paper process, allowing for public consultation. The parliamentary debates on proposed legislation will also be made public, allowing the parliamentary law-making process to appear open and clear. The House of Commons can be considered to have the most influence over legislation, since the House of Lords cannot veto a Bill, but simply make amendments and slow the process, as the House of Commons can send a Bill, without agreement from the House of Lords, for Royal Assent after a year. The House of Commons is also democratically elected, and as such its influence can be seen as fair and democratic, allowing those voted for by the public to have the most power over legislation.
Delegated legislation is not created by Parliament; instead it is the responsibility of other bodies, which have been given their power by Parliament. There are three types of delegated legislation; statutory instruments, which are laws made by government departments, bye-laws, which are laws made by local authorities, or public corporations, and orders in Council, which are made by the government in times of emergency. Delegated legislation is considered necessary for a number of reasons; one is that Parliament does not have the time available to debate all of the laws necessary, and as such other bodies are needed to make rules, and do so much faster than Parliament, therefore delegated legislation is often used for emergency and urgent problems where legislation is needed quickly and would take too long through Parliament. Another factor to consider is that some areas of legislation require technical knowledge, such as building regulations, and Parliament would not have the expertise to create the necessary legislation; this is similar for local bye-laws, on issues such as traffic control, which require specific local knowledge. Finally statutes passed by Parliament may cause problems and queries, and delegated legislation could be used to provide specific details not included within the Act.
As delegated legislation is not made by Parliament, and therefore not those democratically elected by the public to be responsible for legislation, apart from delegated legislation created by elected local authorities, it is important to have sufficient controls. Sub-delegation is a problem with delegated legislation, as the creation of the legislation is delegated further, such as by a government minister, who was originally given the power to make delegated legislation by the enabling act, to civil servants within the department. This means power is taken even further from those elected and continues to make delegated legislation appear undemocratic and in need of strict controls.
Another point to consider is that delegated legislation is generally made privately, rather than being debated as parliamentary legislation is, and thus, although the enabling act may require some public consultation, delegated legislation could be seen as much less open and publicised than statutes. Also, although delegated legislation is published, the vast quantities produced and complex wording mean delegated legislation is criticised for being difficult for people to fully understand, and therefore may not be very open to public scrutiny or involvement in its creation.
Thus the main reason that controls over delegated legislation are necessary is because it is not created by Parliament, and often not even those given the responsibility by Parliament, but is further sub-delegated. This means that the public are not able to elect those making legislation, as they are with Parliament, and thus those making delegated legislation are not accountable to the people, so delegated legislation can seem undemocratic and a particular problem if it is used for more important policies, and not simply administrative rules.
Parliament has initial control over statutory instruments as it passes an enabling Act, which gives other bodies or individuals the power to make rules and regulations. Thus, Parliament is able to limit the powers of those creating delegated legislation, and set out specific procedures for bringing statutory instruments into force, for example in the Aylesbury Mushroom case (1972), in which the Minister for Labour had to consult 'any organisation appearing to him to be representative of substantial numbers of employers engaging in the activity concerned' and the fact that he didn't consult the Mushroom Growers' Association, meant that his order that established a training board, was void against mushroom growers. This is also demonstrated in R v Home Secretary, ex parte Fire Brigades Union (1995), which decided that changes the Home Secretary made to the Criminal Injuries Compensation scheme were beyond the power he was given by the enabling act, the Criminal Justice Act 1988, this case decided that any delegated legislation which is ultra vires, beyond its powers, is void.
Thus, Parliament initially has the ability to limit the powers of bodies and individuals creating delegated legislation, and set down procedure to be followed in their creation; and if those creating the delegated legislation do go beyond their powers, then the legislation will be void.
However, often enabling acts will grant very wide powers to bodies or individuals creating delegated legislation, such as section 8 of the Access to Justice Act 1999, which sets out criteria for the Community Legal Service to consider when offering public funding, but also allows the criteria to include 'such other factors as the Lord Chancellor may by order require the Commission to consider', thus the Lord Chancellor was given the power to add to the criteria without referring it to Parliament and with little real control over the additions he could make.
Another type of control, which some statutory instruments may be subject to, if stated in the enabling act, is affirmative resolutions. This procedure means that statutory instruments must be approved by Parliament before they can become law. This means that Parliament has more control over a piece of delegated legislation, being able to debate it and vote upon whether it should become law. This guarantees that the statutory instrument is brought to Parliament's attention and seems more democratic, as it allows those democratically elected by the people to decide whether a piece of delegated legislation becomes law.
However, time is needed for parliamentary debate on the delegated legislation, and this is scarce, lack of time for parliament to introduce all the necessary legislation being one of the original reasons why delegated legislation is considered necessary. Also, although this could be seen as the most active example of control over delegated legislation, only a small number of statutory instruments are subject to affirmative resolution and thus this strength of control. A final point to consider is that Parliament is unable to make amendments to a statutory instrument during this procedure, it can only approve the legislation or have it annulled or withdrawn, this means Parliament is unable to make minor changes that it may feel are necessary, but simply has to decide whether to accept the statutory instrument as it is.
Negative resolution is the most common form of control and most other statutory instruments will be subject to it. It means that the statutory instrument will become law within a specified time, of normally 40 days, unless it is rejected by Parliament. Any member of Parliament may put down a motion to annul a piece of delegated legislation within that time, and if either the House of Lords or House of Commons passes an annulment motion then the delegated legislation does not become law.
Negative resolution allows parliament to retain control over whether a piece of legislation should become law, but only necessitates debate if members of Parliament do not agree with it. Thus it allows Parliament control without wasting parliamentary time as positive resolutions may do.
However, where positive resolutions could be seen as more active control over delegated legislation, negative resolutions could be described as a more passive process, with delegated legislation becoming law without any parliamentary intervention or a vote in parliament. Also, although any member of parliament has the right to put down a motion to annul a piece of delegated legislation, in practice motions from backbenchers may not be dealt with, although one from the Official Opposition is almost certain to be, and thus not all opinions and uncertainties members of Parliament may have, regarding a piece of delegated legislation, are considered.
Another effective check on delegated legislation is the Joint Select Committee on Statutory Instruments, or the Scrutiny Committee. The Scrutiny Committee reviews all statutory instruments and draws the attention of parliament to certain points, if the statutory instrument; imposes a tax, is made under an Act which states it cannot be challenged in court, is designed to have retrospective effect, may be beyond powers or an unusual use of them, or is badly drafted or in need of clarification.
The Scrutiny Committee is very active in its control and thoroughly reviews all statutory instruments in a way it would be impossible for parliament to do, looking at all of the technical details within the piece of delegated legislation.
However the Scrutiny Committee does not look at the overall policy the statutory instrument is implementing, has a large volume of statutory instruments to deal with, meaning it can be difficult to fully review all of them and most importantly has very limited powers. The Scrutiny Committee cannot make any alterations to statutory instruments, it can only report its findings back to the Houses of Parliament, and they are not always taken into consideration.
A final control over delegated legislation is control by the courts, as previously illustrated by R v Home Secretary, ex parte Fire Brigades Union (1995); any delegated legislation that is ruled to be ultra vires is void. Similarly, in the case of DPP v Hutchinson (1990) it was decided that by-laws under which women were prosecuted for entering Greenham Common RAF base prohibited entry to common land, which mean they were beyond the powers given by the enabling act, the Military Lands Act 1892. The House of Lords stated that unlawful parts of delegated legislation could be severed, and the remaining legislation could still be valid if its purpose and effect were not changed. However, in this case it wasn't possible and the by-laws were therefore entirely void. These cases illustrate how the courts have some control over delegated legislation, if it has exceeded its powers.
It is accepted that if an individual believes a piece of delegated legislation goes beyond its powers, and the individual is affected by the legislation, he or she may challenge it in court, and if it is ultra vires it will therefore become void. In the case of Boddington v British Transport Police, Boddington was smoking on a train where it was forbidden, but argued that prohibiting smoking throughout the train was beyond the power given by by-law 20 of British Railways Board By-laws 1965, made under the Transport Act 1962. Although the House of Lords upheld the ban as lawful, it made it clear, that whether the creation of a piece of delegated legislation was alleged to either exceed the powers it was given by Parliament, this is substantive ultra vires, or not correctly follow procedure, this is procedural ultra vires, challenging its validity can be a good defence to a criminal charge. In this case, Lord Diplock stated "It would ... be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of Government if the judgment of a court in proceedings properly constituted that a statutory instrument was ultra vires were to have any lesser consequence in law than to render the instrument incapable of ever having had any legal effect upon the rights or duties of the parties to the proceedings."
The final grounds on which courts can declare delegated legislation invalid is unreasonableness, if the rules are obviously unjust, or perverse in someway, perhaps made by someone with a financial interest in them.
This makes it clear that individuals can challenge pieces of delegated legislation in court, and therefore gives the courts further controls over any abuse of power in the creation of delegated legislation. This is an important method of control, since it allows the creation of delegated legislation to be fully considered, as opposed to its aims and effects, which cannot be questioned, and is able to determine whether those individuals or bodies who created the delegated legislation exceeded their powers, and take action if they did. This means that despite non-elected people being able to create laws, their powers are monitored and they are unable to exceed their powers without the legislation being void and having no effect.
However, this may be criticised as courts can only review the procedure followed by and powers given to, the creators of delegated legislation, if an individual challenges it. In the case of Boddington v British Transport Police, Lord Diplock also stated that "Their jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings inter partes either brought by one party to enforce the law declared by the instrument against another party or brought by a party whose interests are affected by the law so declared sufficiently directly to give him locus standi to initiate proceedings to challenge the validity of the instrument."
Thus an individual who has been affected by the delegated legislation must challenge it in court before a judicial review of the delegated legislation can take place. This means courts have very limited controls, only available if the delegated legislation is challenged by someone affected by it, which will not always occur, even in cases where the delegated legislation is ultra vires.
In conclusion, delegated legislation is necessary for many reasons; allowing faster, more specific or technical legislation to be created, where it would not be possible with insufficient parliamentary time and relevant knowledge. However, delegated legislation needs to be controlled as it is created more privately than statutes, and with the risk of sub-delegation and abuse of power, by non-elected bodies or individuals. The present controls over delegated legislation, although reasonably effective have their disadvantages, most being limited in their controls; enabling acts can allow very wide powers, affirmative resolutions do not allow for amendments, negative resolutions do not always allow for opposition or unease to be expressed, the Scrutiny Committee's reports are not always considered, and the courts can only look into delegated legislation if an affected individual challenges it. As a result, although controls are reasonably effective, delegated legislation could be considered inadequately controlled, with no real parliamentary inspection, except for the small number of statutory instruments subject to positive resolution. Since delegated legislation is in many ways undemocratic and less public than statutes, it needs tighter controls to prevent possible abuse of power.
Lisa Incledon
March 2004
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Aylesbury Mushroom case (1972)
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DPP V Hutchinson (1990)
Boddington V British Transport Police