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D DELELEEGGAATTEEDD
L LEGEGIISSLLAATTIIOONN
BY THE END OF THIS UNIT, YOU WILL BE ABLE TO:
Explain what DL is and why we need it. Describe the three types of DL and illustrate them with examples. Describe how DL is controlled
YOU WILL ALSO BE ABLE TO EVALUATE:
The effectiveness of the controls The impact of the Legislative and Regulatory Reform Act 2007 Evaluate the advantages and disadvantages of DL
Homework
Law has no coursework, and as such, the homework is an important assessment tool to evaluate your work in the subject. You are reminded that if a homework is not handed in on time, you will have 24 hours to get it to your teacher; otherwise you will receive a U for your work, which may result in your withdrawal from the examination
Complete the IS task on page 6
END OF UNIT TEST
You will be assessed using a DRAG test at the end of the next unit of work (once we have looked at delegated legislation.) You will also plan and write up a response to June 2008’s paper on the topic of legislation and delegated legislation. This will be planned in class time, and written up under timed circumstances.
Source A refers to statutory instruments
(a)Describe and illustrate statutory instruments and two other types of delegated legislation [15]
(b) Discuss whether the delegated legislation could be successfully challenged in the courts, in the following situations:
i. A local authority creates a byelaw banning singing near houses. It is designed to stop carol singers [5] ii. A minister has been given power to make delegated legislation on legal funding. He introduces regulations concerning health care. [5] iii. A minister brings a statutory instrument into force without consulting all the parties specified in the Enabling Act[5]
(c) (i) Describe the need for delegated legislation [15] (ii) Discuss the disadvantages of delegated legislation [12] June 2008 OCR
W WHHAATT IISS DDELELEEGGAATTEEDD LLEEGGIISSLLAATTIIOONN??
This is where the legislative (Parliament) gives the power to make some laws to the executive (ministers,
local government etc).
This is known as secondary legislation, but they have the same force of law as any act of Parliament.
They are a series of laws made by a body other than Parliament. Parliament literally ‘delegates’
or hands over power to other bodies to make laws.
Remember : Parliament can pass any law it wants, so it can give away its power!
A lot of this secondary legislation covers really mundane and boring things, such as commencement dates
for section of a statute but…
Which act does this modify?
How was it passed?
Where did the DL come from?
WHAT ARE THE TYPES OF DL?
For the purposes of AS Law, there are three types you need to know. You need to be able to identify them and explain them, using an example.
Type One:
These are created by local authorities (e.g. Central Bedfordshire), public utilities, town councils or nationalised bodies e.g. railways or airports!
The idea is that they can address the local needs more easily than Parliament, and they normally only affect a specific geographic area.
After all, Westminster doesn’t really care about Dunstable and our local nuisances!
Most of the local laws are done under Local Government Act 1972.
Boddingtons v British Transport Police 1998
FACTS: LAW: Enabling Act:
By-law:
Type Two :
These are possibly the strangest. They are exercised by the legislative Privy Council. This is a select group of ex-ministers, the cabinet and the PM (and others!). They are acting on behalf of the Queen under prerogative powers.
They have the power to make laws in emergencies or when Parliament is not sitting. Emergency Powers Act 1920 & Civil Contingencies Act 2004.
Orders in council are also used to implement a lot of European directives (laws). They were also used in 2004 to reclassify cannabis under the Misuse of Drugs Act 1971.
R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (2006)
Look at the article at the back of the handout entitled ‘After 40 years Chagos exiles can go home, court
rules’ and answer the following questions:
- What were the facts of the situation?
- Which court handed down the verdict?
- When will the judgment come into effect?
- What problems with Orders in Council can you spot?
- What powers does the court have?
Type Three:
These probably make up the majority of DL.
There are well over 3000 of them passed every year! Many of them don’t even go anywhere near Parliament.
These give power to a minister to make rules and regulations governing things in his area. He has to consult before introducing them. SIs are designed to supplement the broad aims of Parliament’s primary legislation with detailed technical rules.
e.g The Dangerous Dogs Act 1991 gives power to to add to
The Misuse of Drugs Act 1973 gives power to to amend
W WHHYY DDOO WWEE NENEEEDD DDLL??
Stop overloading the Parliamentary timetable
Flexibility
Quick to bring in
Expertise
Allows for further consultation
Other reasons?
CCOONNTTRROOLLSS OONN DLDL
Q: Why do we need controls on DL?
A: Well, simply put, because they are powers exercised by people other than Parliament (and not necessarily
democratically elected) so we want to try and limit their power so they won’t get carried away!
General
1. CONSULTATION
Specialists and special interest groups will be asked to feed in to the decisions before. They can also be a little more general and the enabling act may say “such consultation as the Minister may deem appropriate.”
e.g. Codes of Practice under PACE 1984. The Home Secretary must consult with before amending these.
- PUBLICATION http://www.opsi.gov.uk/stat.htm
Statutory Instrument Act 1996 - this says that all SI must be published and made available to the public (although it can be hard to find them!). By laws should also be published in local papers one month before they come into force.
Parliamentary Controls
- FURTHER LEGISLATION OR REVOCATION OF THE PARENT ACT
Reminds us of the supremacy of Parliament, and if they don’t like it… they revoke the Enabling Act or pass another bright shiny law.
2. ASK A QUESTION!
At Prime Minister’s questions (Tuesday PM) they can ask a question of the relevant minister (or even the PM!) or at debates on the bill
Judicial Controls
Unlike primary legislation, DL can be challenged in the courts (the High Court to be exact!) and they can even quash the legislation.
Why? This is because they are created by non-directly elected people [the executive] and so there should be limits on their power.
Extension Work
There is further information on the operation of Judicial Review in January 2008’s Law Review (pgs 10-11). Explain the orders the court may make if the judicial review challenge is successful.
When someone challenges powers under delegated legislation, they have to prove that they have locus
standii. This means that they are directly affected by the legislation and have the ‘standing’ to bring the case.
Gillick v West Norfolk AHA (1986)
There are two[ish] types of judicial review:
1. PROCEDURAL ULTRA VIRES
This means that the body has the power to introduce the delegated legislation, but they don’t follow the set procedures e.g. consultation
Agricultural Training Board v Aylesbury Mushrooms Ltd (1972)
According the E Act, the Minister had to consult:
“any organization… appearing to him to be representative of
substantial numbers employers engaging in the activity
concerned.”
This means ‘beyond the powers’
And those concerned were the mushroom growers who represented 85% of all mushroom growers (impressed yet?).
The court ruled that the minister’s actions were ultra vires. So, the legislation was invalid against them.
But it was still valid against the other organisations… why?
2. SUBSTANTIAL ULTRA VIRES
This means that the body making the law has gone beyond its powers or done something it never had
the power to do in the first place!
- When might this happen? a) Doesn’t interfere with basic human rights: Strictland v Hayes Borough Council (1896) b) Levy taxes c) Sub-delegate [ ahhh… but! ]
R v Secretary of State for Education (ex. Parte NUT) 2000
DDISISAADDVVAANNTTAAGGEESS OOFF DDELELEEGGAATTEEDD LLEGEGIISSLLAATTIIOONN
Volume (^) Scrutiny
Democratic accountability
Difficult to understand
Sub delegation
BBUUTT WWHHAATT AABBOOUUTT AALLLL TTHHOSOSEE CCOONNTTRROOLLSS??
Indeed, some of the controls is below. Does it work effectively? For each one, decide and also not why it is or is not effective.
Control Judicial or Parliamentary?
Effective? Why?
Affirmative Resolution
Judicial review
Negative Resolution
Scrutiny Committees
Publication
D DEVEVEELLOOPPMMEENNTT OOFF TTHHEE LLAAWW
Read the article from the Law Review and the information on the board and write a brief summary of the powers of
the Legislative & Regulatory Reform Act 2007 below.
What other delegated powers does it give Parliament? What are the controls on those powers? Do they go far enough?
and exactly how far we need to go to implement this or that European directive are the bread and butter of everyday government in Whitehall.
Such topics are rarely raised by politicians, press, radio or TV. There are plenty of reasons why - they may be technical issues, they may appear at first sight to affect only a few people or, like weights and measures laws, they might seem to be a long way off.
But once they are on the statute books they can come back to haunt us because they are not always easy to remove. The Grey Squirrels (Prohibition of Importation and Keeping) order 1937 is still technically in force. It requires "the occupier of any land, who knows that grey squirrels, not being grey squirrels kept by him under licence, are to be found thereon shall forthwith give notice to the appropriate department".
I have not yet tried phoning the Ministry of Agriculture about the squirrel that eats nuts from our bird table. I hope it will not land me in court like Mr Thoburn.
- Edward C Page is professor of politics at Hull university.
E.C.Page@pol-as.hull.ac.uk
