Lecture # 8 Delegated legislation - VLCvlc.com.pk/English Legal System ELS/ELS 8 Delegated...Delegated legislation By: Salik Aziz Vaince [0313-7575311] Introduction It is true that

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Lecture # 8

Delegated legislation

By: Salik Aziz Vaince

[0313-7575311]

Introduction

It is true that the main function of the executive is to enforce laws but in certain cases, the power of

making rules is delegated to the various departments of the government.

Delegated legislation is becoming more and more important in modern times.

Delegated legislation is legislation or law that is passed otherwise than in Parliament but with the

authority of parliament. That authority is given in the parent Act known as enabling Act which creates

the basic framework and the delegates the powers to the other bodies to make detailed law in that

area.

In the United Kingdom, Instead, an enabling Act (also known as the parent Act) confers a power to

make delegated legislation on a Government Minister or another person or body. Several thousand

pieces of delegated legislation are made each year, compared with only a few dozen Acts of

Parliament.

Delegated legislation can be used for a wide variety of purposes, ranging from relatively narrow,

technical matters, to filling in the detail of how an Act setting out broad principles will be implemented

in practice.

Definition

Delegated legislation is law made by an executive authority under powers delegated from a legislature

by enactment of primary legislation; the primary legislation grants the executive agency power to

implement and administer the requirements of that primary legislation.

Parliament passes

A

Parent Act

This Act gives the right to create one

of the following types of delegated

legislation.

Orders in Council

made by Queen

and Privy Council

Statutory

Instrument made

by Govt. Ministers

Bylaw made by

Local Authority


Need of Delegated Legislation and Causes of its Growth

The concept of state has changed and instead of talking about a police state, we think in terms of a

welfare state. This change in outlook has multiplied the functions of the government.

This involves the passing of more laws to achieve the ideal of welfare state.

Formerly, every bill used to be a small one but civilization has become so complicated that every piece

of legislation has to be detailed. The rise in the number and size of the bills to be passed by Parliament

has created a problem of time.

Also the formal legislative process requiring readings in both Houses of Parliament is not suitable

where there is an emergency.

For these reasons it is necessary for parliament to delegate law making power to people and bodies

who are better equipped to make the necessary detailed legal reforms.

Parent (or enabling Act) by this piece of primary legislation, parliament gives authority to others to

make law. The parent act will enable further laws to be made under this authority. The enabling Act

contains the outline framework of the new law. That authority lies Within the Act for specific person

(such as a Government Minister) or body (such as a local authority) to make further more detailed

laws. There are many factors of its growth which are as below:

1. Pressure of work- Parliament is an extremely busy body. It is overloaded and burdened with

legislative work. It has to enact so many legislation that it can hardly look into detail of every law. The

time available for drafting bills to be passed into law by parliament is not adequate. If an attempt is

made to draft detailed bills within a short period, the drafting is bound to be defective. No wonder

power is delegated to the departments concerned to issue orders-in-council which can be made at

leisure and which can be expected to be logical and intelligible. Delegating legislation allows law to be

made more quickly than parliament, which is vital for times of emergency. Parliament takes longer as

it does not sit all the time and its procedures is generally quite slow and complex due to the several

stages each bill has to pass through. Delegated legislation can also be amended or revoked relatively

easily, so that the law can be kept up to date and so that the law can meet future needs that arise such

as areas concerning welfare benefits, illustrating a great deal of flexibility in the system. Otherwise

statutes can only be amended or revoked by another complicated and time-consuming statute.

Relieves pressure on Parliamentary time. It is realized that all this legislation cannot be enacted even if

the members of parliament are prepared to work day and night. The result is that Parliament resorts

to the device of passing skeleton bills and leaving the work of filling in the details to the departments

concerned.

2. Technicality of subjects - Modern legislation is becoming highly technical and it is too much to

expect that the ordinary members of Parliament will appreciate all the implications of modern

legislation. Except a few experts in certain lines, the other members of parliament are bound to bungle

if they attempt to do the impossible. Some of the legislations required to be enacted may be technical

in nature. The members of the legislature do not enjoy expertise over every subject. MPs do not

usually have the technical knowledge/expertise required in for example drawing up laws on controlling

technology, ensuring environmental safety, and dealing with different industrial problems or


operating complex taxation schemes whereas delegated legislation can use experts who are familiar

with the relevant areas. Jacqueline Martin has suggested instead for parliament to debate the main

principles thoroughly, but leave the detail to be filled in by those who have expert knowledge of it. The

‘Commons can concentrate on important laws, rather than technicalities under the circumstances, it is

considered safe to approve of general principles of legislation and leave the details to the department

concerned.

3. To meet unforeseen/emergency situations - There might arise certain emergency were

adjustments are required in the prevailing law urgently or frequently. The process of amendment in

the Parliament is a very time consuming and lengthy procedure. Delegated Legislation gives power of

adaptation in new situations. ‘The practice further, is valuable because it provides for a power of

adaption of unknown future condition without the necessity of amending the legislation. The method

the delegated legislation permits for the rapid utilization of experience, and enables the rules of

consultation with interests affected by the operation of new acts to be translated into practice. It is

impossible for Parliament to meet all emergency situations, so it is required to giver powers to

concerned department.

4. Flexibility- In case of delegated legislation changes in the legislation take place more frequently and

without delay, this is not possible in legislation by parliament. Moreover, the implementation of law

becomes easier and flexible by means of delegated legislation. Delegated legislation is necessary for a

number of reasons; parliament does not have time to contemplate and debate every small detail of

complex regulations, as it only has a limited amount of time to pass legislation, delegating legislation

will allow however thoroughly debated regulations to pass through as well as saving parliamentary

time. Delegated legislation gives flexibility to law and it is best way to adjust the laws in the light of

experience in relevant area. Can be made at any time, as opposed to Acts that must be timetabled

5. To fulfill local needs - Another argument for the need of delegated legislation is that parliament

may not always be the best institution to recognize and deal with the needs of local people. As a result

local people elect councilors from certain districts and it is their responsibility to pass legislation in the

form of by-laws to satisfy local needs. That Law made by local authorities with the proper local

knowledge. Moreover, full knowledge of the local conditions may not be available to the Parliament at

the time of passing the law.

6. Speed – Delegated legislation can be made with more speed as compared to Parliament legislation.

Contrast to average 9 months for Parliamentary statute. Food Protection Order 1986- 2 hours.

7. Future needs – Delegated legislation fulfills future needs very easily, that may not be catered for by

statute.

What delegated legislation does?

Delegated legislation allows the Government to make changes to a law without needing to push

through a completely new Act of Parliament. The original Act (also known as primary legislation)

would have provisions that allow for future delegated legislation to alter the law to differing degrees.


These changes range from the technical, like altering the level of a fine, to fleshing out Acts with

greater detail; often an Act contains only a broad framework of its purpose and more complex content

is added through delegated legislation.

Making of Delegated Legislation

Delegated legislation is usually made by being signed by the person making it (or an authorized

delegate of that person, for example a Senior Member of the Civil Service, although in the case of

Orders in Council the verbal assent of the Queen is sufficient.

Most delegated legislation is required (by the parent Act) to be made using a Statutory Instrument.

This ensures that the legislation is catalogued and (apart from a few exceptions) published by the

Queen's Printer, thereby making it available to the public as a whole.

However where delegated legislation is of only limited application (for example, most Directions and

by-laws), and therefore not of general importance, the parent Act may not require that it be made

using a Statutory Instrument. Instead, other provisions may be made for publishing the legislation. So,

for example, an Order providing for the transfer of contracts from one National Health Service body to

another may only be notified to the affected bodies, and by-laws made by a local council may be

publicized through an announcement in local newspapers.

Layout of Delegated Legislation

Most delegated legislation will begin with a preamble which sets out who is making the legislation, the

authority (precisely which sections of which Acts of Parliament) under which it is passed and, where

appropriate, confirming that any pre-conditions required by the parent Act (for example, approval of a

draft by each House of Parliament, or consultation with specified organisations) have been met.

What term is used to refer to the individual clauses of delegated legislation will depend on which type

it is:

- In Orders, Orders in Council and Orders of Council, each clause is called an article.

- In Regulations, each clause is a regulation.

- In Rules, each clause is a rule.

- In Directions, and in the Schedules of Orders, Regulations and Rules, each clause is called a

paragraph.

Clauses may be grouped under headings and in complex delegated legislation; the document may be

divided into Parts. The main body of the delegated legislation may be followed by Schedules setting

out even more detailed provisions.

There will also usually be an explanatory note describing, in summary form and using non-legal

language, the purpose and scope of the legislation. The explanatory note is for convenience only and

has no legal effect.

Types of Delegated Legislation

Delegated legislation can take a variety of forms, each of which are for different purposes. However

the boundaries between the different types are not fixed, and which type of delegated legislation is

used will be determined by the wording of the parent Act.


Statutory Instruments (SIs)

By-law, order, ordinance, or regulation issued by a government or its agencies for the enactment or

enforcement of a specific statute. Statutory instruments detail the measures that must be taken by

the entities to which they are addressed. Also called statutory rule.

Statutory instruments are made in a variety of forms, most commonly Orders in Council, regulations,

rules and orders. The form to be adopted is usually set out in the enabling Act.

Statutory Instruments, also known as SIs, are a form of legislation which allows the provisions of an

Act of Parliament to be subsequently brought into force or altered without Parliament having to pass a

new Act. They are also referred to as secondary, delegated or subordinate legislation.

Acts of Parliament confer powers on Ministers to make more detailed orders, rules or regulations by

means of statutory instruments. An Act will often contain a broad framework and statutory

instruments are used to provide the necessary detail that would be too complex to include in the Act

itself.

Statutory instruments can also be used to amend, update or enforce existing primary legislation.

Statutory instruments are laws made by a government minister under the authority of a

parent/enabling Act within the area of their ministerial responsibility. Statutory instruments are often

used to update law, for example to increase in the amount of the national minimum wage under the

National minimum wage Act 1998. Law that is made to comply with directives from the European

Union is usually made in the form of a statutory instrument.

Sometimes there may be several Commencement Orders made in respect of the same Act, i.e. the

Town and Country Planning Act 1971 was brought into force by 75 Orders.

There is no time limit within which Commencement order must be made after the Act has been

passed. This means that some Acts are never actually brought into force, e.g. the Easter Act 1928

which specifies a fixed date for Easter, but the Act has never been brought into force.

Approximately 3000 SIs are issued each year, making up the bulk of delegated legislation.

The Delegated Powers Scrutiny Committee (established in 1992) keeps under constant review the

extent to which legislative powers are delegated by Parliament to government ministers, and examines

all Bills with delegating powers which allow SIs to be made before they begin their passage through the

House.

There is an informal understanding in the Lords that, when the Delegated Powers Committee has

approved provisions in a Bill for delegated powers, the form of those powers should not normally be

the subject of debate during the Bill's subsequent passage.

The House of Commons has no equivalent committee.

The House of Lords Secondary Legislation Scrutiny Committee (formerly the Merits Committee)

Established in 2003, the Lords Secondary Legislation Scrutiny Committee considers every negative and

affirmative SI (or draft SI) laid before Parliament - about 1200 per year - with a view to determining

whether the special attention of the House should be drawn to it on any of the following grounds that

it:


Add detail to the parent Act Road Traffic Act 1972. All motorcyclists must wear helmets; it is left to

Minister of Transport however to legislate on the details such as what type of helmet

Road Vehicle Regulations 2003. Mobile phones cannot be used while driving.

Rule

The term ‘rule’ is defined in the General Clauses Act, 1897 as a rule made in exercise of power

conferred by any enactment. A Statement that establishes a principle or standard, and serves as a

norm for guiding an action or conduct.

It also includes a regulation made as rule under any enactment. These rules may be applicable to a

particular individual or to the general public.

In simple words rule is a statement that tells you what is or is not allowed in a particular game,

situation, etc.

Rules set out procedures, for example rules governing court procedures, or the way in which the

Patent Office deals with applications. Rules may be made by Ministers or, if specified in the parent Act.

Rules may be divided into four general categories:

- (1) Folklore: Unpublished rules that are conveyed by behavior and are implicitly understood.

- (2) Guidelines: Commonly published and recommended practices that allow some discretion with

their interpretation and use.

- (3) Mandates: Published commands that may not be ignored in any circumstance and whose

violation is punished.

- (4) Policies: Published rules that imply a predicted behavior and whose violation may be permitted

or tolerated under certain circumstances.

Regulation

An official rule or law that says how something should be done. Regulations are also usually made by

Ministers.

Regulations are the means by which substantive and detailed law is made, for example setting out in

detail how an Act is to be implemented. Regulations made under the European Communities Act 1972

are the means by which the Government most often implements European law within the United

Kingdom.

This term is not confined to delegated legislation only. It means an instrument by which decision,

orders and acts of the government are made known to the public. But in the sphere of delegated

legislation, the term relates to the situation where power is given to fix the date for the enforcement

of an Act or to grant exemption from the Act or to fix prices etc.

Directions

The act of governing; management. A statement that tells a person what to do and how to do it.

Directions are a means by which Ministers give legally binding instructions to a public body about the

way it exercises its functions.

The term ‘direction’ is an expression of administrative rule making under the authority of law or rules

or orders made there under. These may be recommendatory or mandatory. If mandatory, they have

the force of law.


Scheme

A systematic plan of action. A broad outline of how an objective can be achieved. It is not a formal

plan and will not show every detail.

The term ‘refers’ to a situation where the law authorizes the administrative agency to lay down a

frame work within which the detailed administrative action is to proceed. Schemes: for example,

schemes made by the Charity Commission to amended how a charity is governed.

Orders in Council

Orders in Council are drafted by the Government and given formal approval by the Queen and the

Privy Council. Orders in Council are generally used where it would be inappropriate for the order to be

made by a Minister, for example where the matter is of constitutional significance.

Orders are usually made by Ministers. An Order is an exercise of executive powers, for example to

create or dissolve a public body. Commencement Orders are used to set the date on which an Act, or

part of an Act, comes into force.

Orders in Council are used in many situations, including:

- Transferring responsibility between Government departments or from Westminster departments

to Scottish Parliaments and the Welsh assembly; this was done by the Scotland Act 1998 Order

1999 and the National Assembly of Wales Order 1999.

- Dissolving parliament before an election.

- Bringing in Act of Parliament into force.

- Compliance with EU Directives, for example the Consumer Protection Act 1987 Order 2000.

- Dealing with foreign affairs, for example, the Afghanistan (united Nations Sanctions) Order 2001,

which makes it an offence to make funds available to Osama Bin Laden or the Taliban or any person

or body connected with Osama Bin Laden or the Taliban.

- In times of national emergency, when Parliament is not sitting. An example of an emergency

situation is which an order in council was made, is as a result of the terrorist attacks on 11th

September 2001 where there Afghanistan Order 2001 was passed.

The Privy Council is made up of the Prime Minister, senior current and former politicians,

senior judges and members of the Royal Family. This allows the Government to make legislation

without going through Parliament and usually made when Parliament is not sitting. There are currently

420 members of the Privy Council; however only three or four current Government Ministers attend

meetings at which Orders in Council are made. Appointment is made by the Queen on the advice of

the Government and is for life.

Bylaws:

Byelaws are laws of limited application (usually restricted to certain places) made by local authorities

or certain other bodies to control the activities of the people in public spaces, such as in public parks or

on public transport.

The term has been used to mean the rules made by autonomous bodies.

Bylaws can be made by local authorities to cover matters within their own areas.

Many local Bylaws will involve traffic control, such as parking restrictions.


Bylaws can be made by public corporations and companies for matters within their own control which

involve the public, e.g. the smoking ban on the London Underground system.

They must be approved by the relevant Government Ministers before they are enforceable in the

Courts.

Many by-laws are made under the authority of the Local Government Act 1972.

Pubic bodies and some companies can make laws regulating the behavior of the public while on their

property, i.e. the Transport Act 1993 where it was made illegal to smoke on trains. (Boddington v

British Transport Police (1998).

Control of Delegated Legislation

There are controls in place in relation to delegated legislation to ensure that those who make law

under it are doing it in an appropriate manner.

Why is it necessary to have controls over delegated legislation?

There are many important reasons why it is necessary to have controls over delegated legislation.

Currently delegated legislation is made by non-elected bodies away from democratically elected

politicians (parliament) , as a result many people have the power to pass delegated legislation, which

provides a necessity for control, as without controls bodies would pass outrageous unreasonable

legislation which was attempted in the past; in the Strictland V Hayes Borough Council (1986) where a

bylaw prohibiting the singing or reciting of any obscene language generally, was held to be

unreasonable and as a result the passing of this delegated legislation was rejected.

You may have been surprised to read that through delegated legislation an enormous amount of law is

made every year outside of the democratically elected parliamentary process and therefore this law is

being made by non-elected people. There are, however, certain safeguards to ensure that delegated

legislation is controlled by way of both parliamentary and judicial control.

Below I describe cases where controls over delegated legislation have been essential in order to avoid

authorities abusing their powers, the particular cases are:

R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000) a

High Court judge ruled that a statutory instrument setting conditions for appraisal and access to higher

of pay for teachers was beyond the powers given under the Education Act 1996 as a result the

statutory instrument was declared void. This case demonstrated a clear example of where delegated

legislation can lead to abuse of powers and why it is necessary to have controls over delegated

legislation.

Commissioners of Custom and Excise v Cure and Deely Ltd (1962) Finance Act gave Customs and

Excise power to make any law they wanted. This was wrong as it gave a government department more

power than Parliament. This is a case where it has been clearly demonstrated without controls many

authorities will abuse the powers.

Another issue which occurs making controls over delegated legislation vital is sub legislation, which is

where law making is handed down another level to people other than those who were given the

original power to do so, to implement important policies. Creating criticism that our law is made by

civil servants (who may know hardly anything about the law) and just rubber stamped by the Minister


of that department, this requires law passed by these civil servants to be checked by the scrutiny

committee of parliament or the courts.

Finally delegated legislation can share the same issues as Acts of Parliament such as ambiguous

wording that can lead to difficulty in understanding the law, which again makes controls necessary as

parliament or the courts can stop unclear legislation, which will affect the lives of hundreds of people

from passing.

General control methods

The initial control Parliament has over delegated legislation is through the limits it sets in the

parent/enabling Act. The parent/enabling Act will set out how the delegated legislation must be made

and may set out certain procedures, to be followed. Parliament may repeal or amend the piece of

delegated legislation. However, the effectiveness of this control is limited, because of the amount of

delegated legislation made; Parliament will not be able to check it all. All by-laws are confirmed or

approved by the relevant government minister. This should ensure that all locally made law is overseen

by those with the expertise of the technical issues involved. Control over DL can be categorized as

below:

Consultation

The creators consult experts in the relevant field. The enabling Act may make such consultation

compulsory.

Ministers have the benefit of further consultation before regulations are drawn up. Those who make

delegated legislation often consult experts in those relevant fields as well as those bodies who are

likely to be affected by it.

An example of a consultation process could be given under road traffic regulations, where ministers

are likely to seek the advice of police, motoring organisations, vehicle manufacturers and local

authorities before making the rules.

Publication

All delegated legislation is published and therefore provides an opportunity for public scrutiny.

However publication has only limited benefits. The large volume of delegated legislation makes it

difficult for the public to understand what the current law is; also the majority of delegated legislation

is made in private in contrast to the public debate of parliament.

People are also unaware of their rights; on what grounds law can be challenged and how to go about

doing so making it difficult for public scrutiny.

On the other hand many people also lack financial resources to go to court, which means legislation is

let unchallenged.

Control by Parliament

Parliament exercises control over delegated legislation in that when the Act of Parliament is created,

Parliament stipulate in the Act of Parliament the parameters with regard to delegated legislation, by

which delegated legislation made by Statutory Instrument may either need to be approved by a vote


of each House of Parliament before it is made, or be subject to a veto by either House within a certain

period of time after it is made through the doctrine of parliamentary sovereignty.

Further, there are scrutiny committees which consider delegated legislation within a Bill as it passes

through the Houses of Parliament.

This is fairly limited, though obviously Parliament has the initial control with the enabling Act which

sets the boundaries within which the delegated legislation is to be made.

It reports its findings to the House of Lords before the committee stage of the Bill, but has no power to

amend Bills.

Limits Delegated Legislation through the Parent/Enabling Act

Only the people or body specified in the parent act have power to make law, and extend of that power

is also specified.

The parent act will set out how the delegated legislation must be made and may set out certain

procedures, such as consultation, to be followed.

Parliament Supremacy is not compromised as Parliament ultimately remains in control of what law is

made and how it is made.

Parliament may repeal or amend the piece of delegated legislation, this allows parliament to make or

unmake laws.

The effectiveness of this control is limited because, due to volume of delegated legislation made each

year, Parliament will not be able to check it all.

Joint Select Committee on Statutory Instruments, also known as the Scrutiny Committee which is

made up of MPs and Peers check the Statutory Instruments and refer back to the Houses of

Parliament.

Main grounds for referring a SIs back to House of Parliament are because:

It appears to have gone beyond or outside the powers given under the Parent/Enabling Act.

It has not been made according to the method written in the Parent Act.

Unexpected use has been made of the delegated power.

If it unclear or defective.

If it imposes a tax or charge – only parliament has the right to do this.

If it is retrospective in its effects, and the Parent/Enabling Act did not allow for this.

This is more effective control as many Statutory Instruments are subject to some scrutiny.

However impossible to look at all as over 3000 are created each year.

Scrutiny committees are limited in that it has no power to amend the Statutory Instruments, merely to

report its finding back to the House of Commons or Lords.

However, research by the Hansard Society, reported in 1992, revealed many findings of the Scrutiny

Committee were ignored.

The House of Lords’ Delegated Power Scrutiny Committee (set up in 1993) considers whether the

provisions of Bills give inappropriate delegated legislative power. It reports to the House of Lords

before the Committee stage on the Bill.


Affirmative Resolution Procedure

Through an affirmative resolution procedure where a statutory instrument may not become law

unless specifically approved by parliament; parliament will put an instruction under the Parent Act,

informing that the issue is required to be debated and voted upon before it becomes law.

Under the affirmative resolution procedure parliament may be required to vote for its approval of the

delegated legislation, which will provide a fair system as each Member of Parliament will represent the

public or a specific body and will provide different views on different laws, it would also ensure that

full parliamentary attention has been drawn to important legislation. MPs also have the advantage of

asking ministers questions about delegated legislation at question time or raise them in debates. A

small number of statutory instruments will be subject to an affirmative resolution.

For example, an affirmative resolution is required before new or revised Police Codes of Practice under

the Police and criminal Act 1984 can come into force.

Disadvantages:

A major disadvantage of this procedure however is that parliament cannot amend the statutory

instrument; it can only be approved, or withdrawn.

Another disadvantage of this procedure is that it can be fairly time consuming of parliamentary time

due to carrying out votes and opposition parties having the opportunities to raise any objections which

contradicting one of the main aims of Delegated Legislation.

Statutory Instruments must be approved by one or both Houses of Parliament within a specified time,

usually between 28 and 40 days, before it can become law.

As the Government Minister is part of the Government, they will normally get most of the votes.

As a result of these disadvantages the affirmative resolution is not used very often.

However with affirmative resolution the Statutory Instruments must always be debated by parliament

and it is therefore more effective than some of the other controls.

Negative Resolution Procedure

Initially, Parliament has control in that the enabling or parent Act passed by Parliament sets out the

framework or parameters within which delegated legislation is made but there are some other ways.

New DL displayed in Parliament and will become law unless any MP objects within 40 days.

Most other statutory instruments will be subject to a negative resolution, which means that the

relevant statutory instrument will be law unless rejected by Parliament within 40 days.

Individual Ministers may also be questioned by MPs in Parliament on the work of their departments,

and this can include questions about proposed regulations.

All members of both Houses can put down a motion known as a ‘prayer’ calling for annulment. There is

then a debate and vote.

If either House vote to pass the annulment motion, the Statutory Instruments does not become law.

More often however, the Statutory Instruments is not annulled during the 40 day period and so

automatically becomes law.

Disadvantages:

Limited effect, as there is no requirement for MPs to look at the Statutory Instrument.


Most Delegated Legislation is not challenged and automatically becomes law after 40 days.

However, this method of control does give opportunity for any member of either House to raise

objections.

This in turn may provide for more debate and consideration to be given to the provisions of the

Statutory Instrument.

Control by the Court (Judicial control)

Judicial control is exercised through the means of judicial review. Because delegated legislation is made

by a person exercising a power conferred by an Act of Parliament for a specified purpose, rather than

by Parliament exercising its sovereign law-making powers, it can be struck down by the courts if they

conclude that it is ultra vires This would be the case if the Government attempts to use delegated

legislation for a purpose not envisioned by the parent Act, or if the legislation is an unreasonable use of

the power conferred by the Act, or if pre-conditions imposed by the Act (for example, consultation

with certain organizations) have not been satisfied.

Delegated legislation is also subject to control by the courts whose judges can declare a piece of

delegated legislation to be ultra vires. Ultra vires means 'beyond powers', so the court would be saying

that a piece of delegated legislation went beyond the powers granted by Parliament within the

enabling Act. If the court does this, then the delegated legislation in question would be void and not

effective.

Any Court action which is brought challenging delegated legislation is done through the means of

Judicial Review. If the Court finds that a piece of delegated legislation is ultra vires then that legislation

can be declared void.

There are two types of ultra vires.

Procedural ultra vires

The court can hold that delegated legislation is ultra vires if the correct procedure has not been

followed. This is where the enabling Act sets out the procedural rules to be followed by the body

which has been given the delegated power. The court can find the delegated legislation to be ultra

vires and void if these rules were not followed.

In the Aylesbury Mushroom case (1972) Agricultural Horticultural and Forestry Industry Training

Board v Aylesbury Mushrooms Ltd (1972) 1 All ER 280 delegated legislation required the Minister of

Labour to consult 'any organisation … appearing to him to be representative of substantial numbers of

employers engaging in the activity concerned' about the establishment of a training board. The

Minister failed to consult the Mushroom Growers' Association which represented about 85 per cent of

all mushroom growers. Therefore, the delegated legislation was declared to be ultra vires on

procedural grounds.

Substantial ultra vires

This is where the delegated legislation goes beyond what Parliament intended.

In R v Secretary of State for Education and Employment, ex parte National Union of Teachers(2000)

QBD, the High Court determined that an SI concerning teachers' pay and appraisal arrangements went


beyond the powers provided under the Education Act 1996. Therefore, the delegated legislation was

declared to be ultra vires on substantive grounds.

Relevant case laws: The court will ask;

a) Did the maker of the DL exceed the powers given in the parent Act?

Bulger case 1996 Home Secretary Michael Howard intervenes to increase minimum sentence of 2

murderers from 8 to 15 years; this was ultra vires.

R v Wood 1855 Minister for Health created an SI that would force all people to clear snow off their

own paths, on the pretext that it was an “unhygienic substance”

b) Is the DL irrational or unreasonable?

Strickland v Hayes BC a bylaw would prohibit obscene songs/language in any place, including in

private, Held to be unreasonable.

c) Has there been a defect in the procedure by which the DL was made?

Aylesbury Mushroom Case 1972 the minister did not consult the Mushroom Growers’ Association

when the enabling act required them to.

Conclusion -Are the different controls satisfactory?

After having reviewing the controls that exist over delegated legislation I have discovered many flaws

in the system such as the Scrutiny Committee not being able to consider the merits of any piece of

delegated legislation (only whether the delegated legislation has been correctly used) and the Scrutiny

Committee having no power to alter any statutory instruments and parliament only being able to

approve, withdrawal or annul legislation.

As a result the different controls are not satisfactory; however there are reformations that could take

place to improve the current delegated legislative process.

Parliament should be able to amend a statutory instrument rather than just withdrawing it, approving

it or simply annulling it.

Another reformation that could take place in order to improve the current system of delegated

legislation is for parliament to vitally consider the critical findings of the Scrutiny Committee, as it is

appalling to know that months and years of hard work from the Scrutiny Committee on delegated

legislation is simply ignored by parliament.

Importance of Delegated Legislation

There are several reasons why delegated legislation is important.

Firstly, it avoids overloading the limited Parliamentary timetable as delegated legislation can be

amended and/or made without having to pass an Act through Parliament, which can be time

consuming. Changes can therefore be made to the law without the need to have a new Act of

Parliament and it further avoids Parliament having to spend a lot of their time on technical matters,

such as the clarification of a specific part of the legislation.

Secondly, delegated legislation allows law to be made by those who have the relevant expert

knowledge. By way of illustration, a local authority can make law in accordance with what their locality

needs as opposed to having one law across the board which may not suit their particular area. A


particular Local Authority can make a law to suit local needs and that Local Authority will have the

knowledge of what is best for the locality rather than Parliament.

Thirdly, delegated legislation can deal with an emergency situation as it arises without having to wait

for an Act to be passed through Parliament to resolve the particular situation.

Finally, delegated legislation can be used to cover a situation that Parliament had not anticipated at

the time it enacted the piece of legislation, which makes it flexible and very useful to law-making.

Delegated legislation is therefore able to meet the changing needs of society and also situations which

Parliament had not anticipated when they enacted the Act of Parliament.

Advantages/Needs of Delegated Legislation

Saves Parliamentary time, In order to reduce pressure on parliamentary time, Acts of

Parliament often give government ministers or other authorities the power to regulate administrative

details by means of 'delegated' or secondary legislation. Parliament does not have the time to consider

and debate every small detail of complex regulations hence giving the authority to a body/individual

under them, for example the fine detail of a public sector pension scheme or the precise design of

traffic signs, thereby freeing Parliament to discuss matters of broad principle and policy.

Flexibility: delegated legislation is flexible enough to deal speedily with changing circumstances.

Delegated legislation is more flexible than an Act of Parliament. It can be passed quickly and easily

amended or revoked, so that the law is up to date, and to deal speedily with changing circumstances,

for example increasing costs of services, developments in scientific knowledge or minor changes in

policy.

Expert legislation: Parliament passes the parent Act and those with technical expertise or

necessary knowledge can fill in the details, it allows laws relating to technical matters to be prepared

by those with the relevant expert knowledge. Also Parliament may not have the necessary technical

expertise or knowledge required. Modern society has become very complicated and technical, so that

it is impossible for members of Parliament to have all knowledge needed to draw up laws on

controlling technology for example health and safety regulations in different industries need expert

knowledge, ensuring environmental safety, dealing with various industrial problems or operating

complex taxation schemes while local parking regulations need local knowledge also. It is thought that

it is better for parliament to debate the main principles thoroughly, but leave the detail to be filled in

by those who have expert knowledge of it.

Practical legislation: Government Ministers often consult interested bodies and parties before

drafting statutory instruments, or Ministers can have the benefit of further consultation before

regulations are drawn up. Consultation is particularly important for rules on technical matters, where it

is necessary to make sure that the regulations are technically accurate and practical. Some Acts that

are giving the power to make delegated legislation set out that there must be consultation, before the

regulations are created. For example, before any new or revised police Code of practice under the

Police and Criminal Evidence Act 1984 is issued there must be consultation with a wide range of

people.


To Meet emergency situations: This also makes it priceless in emergencies when very swift

action is required – delegated legislation made under emergency powers can be drafted, enacted and

brought into force in a matter of hours rather than the days, weeks or months that would be required

to pass an Act of Parliament. It allows rapid action to be taken in times of emergency. The Food

Protection (Emergency Provisions) Order 1986 was made and laid before Parliament and came into

effect less than two hours later, prohibiting the movement or slaughter for food of sheep in certain

areas thought to have been affected by radioactive fallout from the incident at the Chernobyl power

station.

To keep the law up to date: It can also be amended or retracted easily when necessary, so

that the law can be kept up to date, and Ministers can respond to new or unexpected situations by

amending or developing the statutory instruments.

Compatibility with International law: It allows for the fulfillment of international

obligations where amendment is impossible and Parliament can say only yes or no. The Diseases of

Poultry Order 1994, made under the Animal Health Act 1981 and imposing measures to prevent the

spread of avian flu and Newcastle disease, was made in response to an EC directive requiring such

measures. Similarly, the Mental Health Act 1983 (Remedial) Order 2001 was made in response to a

declaration of incompatibility under the Human Rights Act 1998.

The disadvantages/criticisms of Delegated Legislation

Insufficient control: Delegated legislation can also be criticized on the grounds that it is subject

to less parliamentary scrutiny than primary legislation and thereby may potentially be used by the

Government in ways which Parliament had not intended or appreciated when it conferred the power.

Parliament therefore has a lack of control over delegated legislation and this can lead to

inconsistencies in laws. In addition, delegated legislation therefore has the potential to be used in ways

which Parliament had not anticipated when it conferred the power through the Act of Parliament. One

reason of this disadvantage is that there is a large amount of statutory instruments (over 3,000 per

year). (“The more laws, the less justice.")

Against the will of Democracy: it has been suggested that by having delegated legislation to

make and/or amend laws etc. it lacks democracy as too much delegated legislation is made by

unelected people. So it Takes legislation away from elected bodies which against the true will of

democracy.

Sub-delegation-Sub-delegation: Sub-delegation occurs whereby law making power is passed

on to civil servants by Government Ministers. Much law made by civil servants, merely rubber-stamped

by ministers. This means that the law making authority is handed down another level. Sub delegation

causes comments that much of our law is made by civil servants and is just ‘rubber stamped’ by the

elected Ministers.

Lack of publicity: Another disadvantage is in the sheer volume of laws that are passed as

delegated legislation. Because of this bulk, there is normally little publicity or knowledge about the

changes that are being made. When law is made by statutory instrument the public are not normally


notified of it whereas with Acts of Parliament, on the other hand, they are widely publicised. The

considerable volume of delegated legislation also generates criticism as it makes it difficult to discover

what the present law is. This problem is provoked by a lack of publicity, as much delegated legislation

is made in private in contrast to the public debates of Parliament.

Difficult to interpret: Like statute, can suffer from difficult wording, delegated legislation shares

the same problems with the Acts of Parliament. Unclear wording that can lead to difficulty in

understanding the law. Because different words are used for the same thing and same words are used

for different things.

Delegated legislation examples

- Road Traffic Act 1988 s.17 (1) The Secretary of State may make regulations prescribing (by

reference to shape, construction or any other quality) types of helmet recommended as affording

protection to persons on or in motor cycles ... from injury in the event of accident.

- Local Government Act 1972 s.235 [A District Council] may make bye-laws for the good rule and

government of the whole or any part of the District ... and for the prevention of nuisances therein.

- Courts Act 2003 s.69 (1) There are to be rules of court (to be called "Criminal Procedure Rules")

governing the practice and procedure to be followed in the criminal courts. (2) Criminal Procedure

Rules are to be made by a committee known as the Criminal Procedure Rule Committee.

- Solicitors Act 1974 s.31 (1) The Council [of the Law Society] may, if they think fit, make rules ... for

regulating the professional practice, conduct and discipline of solicitors.

- Church of England (Worship and Doctrine) Measure 1974 s.1 (1) It shall be lawful for the General

Synod to make provision by Canon with respect to worship in the Church of England...

- Railways Act 1993 s.129 (1) an independent railway operator may make bye-laws regulating ... the

conduct of all persons while on [trains or railway property].

- National Trust Act 1907 s.33 The National Trust may in respect of any building forming part of the

Trust property make byelaws.

Case Laws

Boddington V British Transport Police [1998] 2 All ER 203, HL

British Rail (shortly before privatization) made a byelaw under s.67(c) of the Transport Act 1962 as

amended, prohibiting smoking where "no smoking" notices were displayed; they subsequently

introduced a total ban on some trains and displayed notices to this effect. A smoker A defied this

prohibition; he was convicted and fined £10 by the stipendiary magistrate, and his conviction was

upheld on appeal.

R V Wood (1855) 119 ER 400, QB

The Public Health Act 1848 gave power to local health boards to make bye-laws requiring the removal

of "dust, ashes, rubbish, dung and filth" from pavements. D was prosecuted for non-compliance with a

Burslem (town) bye-law that required the removal of snow, but the court said this was ultra vires.

Freshly-fallen snow could be pure, so could not be regarded as "filth" as the board claimed.


Attorney-General V Wiltshire United Dairies (1922) 91 LJKB 897, HL

Wartime legislation allowed the Food Controller to regulate the supply of food in such manner as he

thought fit. He made regulations restricting the transportation of milk to those holding a special

licence, for which a fee of £2 per gallon was payable. The House of Lords declared this regulation ultra

vires: it was equivalent to a tax, and no tax can be levied without the express consent of Parliament.

Delegated legislation may also be invalid if it has been made for improper reasons.

R V Somerset CC Ex P Fewings [1995] 3 All ER 20, CA

A local authority voted to ban stag hunting on land which it owned, and officers of the hunt sought

judicial review of this decision. Laws J and the Court of Appeal said the majority of councilors in voting

for the ban had been swayed by irrelevant factors (namely, their belief that hunting was immoral); they

should have considered only whether the proposed measure would be for the benefit or improvement

of the area. The decision should therefore be quashed.

Where the enabling Act set out a particular procedure for making the delegated legislation (for

example by including a requirement to consult) the legislation may be invalid if the proper procedure

was not followed.

Agricultural Training Board V Aylesbury Mushrooms [1972] 1 All ER 280, Donaldson J

Legislation required the Minister to consult relevant bodies before making Orders of a certain type,

and through a clerical error there was no consultation with the Mushroom Growers' Association (who

were conceded to be a "relevant body" for this purpose). The court ruled that the consultation

requirement was mandatory, and that its breach made the Order invalid as far as mushroom growers

were concerned.

Delegated legislation may be invalid if it is excessively vague, or if it is so irrational that no

reasonable person could have made it. This is not a decision to which the courts come very readily,

but in extreme cases it may be appropriate.

Strickland V Hayes [1896] 1 QB 290, DC

Acting under the Local Government Act 1888, Worcestershire CC made it an offence to sing or recite

any profane or obscene song, or to use any profane or obscene language "in any street or public place

or on land adjacent thereto". Quashing A's conviction, the court said this went beyond the scope of the

parent Act (which was concerned with the prevention of annoyance to others) and was consequently

invalid, even though in the instant case A had been speaking on a public footpath surrounded by many

other people.

Kruse V Johnson [1898] 2 QB 91, DC

Kent CC made a byelaw prohibiting any person from singing or playing music in a public place within

fifty yards of a dwelling house, having been asked to stop. An evangelist (A preacher of the Christian

gospel (books)) A conducted an open-air service and sang hymns in the street, in spite of having been

asked not to. The High Court affirmed his conviction: when the court is called on to consider the

validity of bye-laws made by public representative bodies (as opposed to railway companies and the

like), said Lord Russell CJ, they ought to be supported if possible. Obiter, a byelaw could be declared

invalid if it was manifestly unjust or oppressive or disclosed bad faith on the part of its makers.


Nash V Finlay (1901) 20 Cox Cc 101, Dc

A woman who used abusive language to another person was convicted by justices under a Stafford

Borough byelaw providing that "no person shall willfully annoy passengers in the streets". The High

Court allowed her appeal on the basis that the bye-law did not give an adequate indication of what

conduct it was meant to prohibit. Lord Alverstone CJ said a bye-law must be at least certain in its scope

and reasonable in its content.

Boddington V British Transport Police [1998] 2 All ER 203, HL

British Rail (shortly before privatization) made a byelaw under s.67(c) of the Transport Act 1962 as

amended, prohibiting smoking where "no smoking" notices were displayed; they subsequently

introduced a total ban on some trains and displayed notices to this effect. A smoker A defied this

prohibition; he was convicted and fined £10 by the stipendiary magistrate, and appealed on the

grounds that the application of the byelaw was irrational and therefore ultra vires. Dismissing his

appeal, Lord Irvine LC said A was entitled to challenge the validity of the bye-laws in criminal

proceedings against him, but a ban on smoking in all railway carriages is a way of regulating the use of

the railway, and British Rail had not exceeded their powers.

R V Secretary Of State for Social Security Ex P B [1996] 4 All ER 385, CA

An asylum-seeker B sought judicial review of Regulations withdrawing all social security benefits from

those who sought asylum after having been admitted to the UK, rather than at the moment of entry.

Reversing the High Court and granting a declaration that the Regulations in question were ultra vires,

notwithstanding their approval by Parliament, Simon Brown and Waite L J said subordinate legislation

must not only remain within the powers granted by the enabling Act, but must be consistent with any

other primary legislation. The Asylum and Immigration Appeals Act 1993 expressly granted asylum

seekers a right to seek asylum (and to appeal against a refusal); Regulations effectively depriving them

of any means of support for months or years would make it impossible for them to exercise that right,

and must consequently be invalid. [The policy contained in the invalid Regulations was subsequently

enacted in statute.]

R (Bono) V Harlow DC [2002] 1 WLR 2475, Richards J

Applicants sought to challenge the decision of the district housing review board that they were not

entitled to housing benefit, and argued that since the board consisted of councilors appointed by DD

they had been denied the right to a hearing before an independent and impartial tribunal. The judge

agreed, and said the relevant Regulations, although themselves authorized by statute were

incompatible with the Human Rights Act. Section 6(2) of the Human Rights Act 1998 applies only where

the primary legislation requires such incompatibility, not where (as here) it merely permits it. It

followed that the Regulations were invalid and the council's compliance with them unlawful. [Note:

The procedures had in fact been changed to provide an independent review, before this case came to

court.]


The court will not strike out legislation simply because it thinks the policy behind it was wrong, or

the detailed rules undesirable.

Nottinghamshire CC V Secretary Of State [1986] 1 All ER 199, HL

A local authority sought to overturn the government's limit on their spending and cuts in the rate

support grant. Refusing their claim, Lord Scarman said it would not be constitutionally appropriate,

save in very exceptional circumstances (as for example where the Minister had misled the House, or

both the Minister and the House had misconstrued the enabling statute), for the courts to intervene

on the ground of unreasonableness to quash guidance framed by the Secretary of State and implicitly

approved by the House of Commons. If the House of Commons were supervising the exercise of

Ministerial powers, the courts should stand back.

R (Javed) V Home Secretary [2001] 3 WLR 323, CA

The Home Secretary (Michael Howard) made an Order under delegated powers, in which Pakistan was

designated a "safe country" in which there was in general no serious risk of persecution (on the basis

of race or religion), and to which rejected asylum-seekers might be returned after an accelerated

appeal process. J and other applicants sought judicial review of that decision on the basis that it was

factually wrong. The Court of Appeal said the provisions of Art.3 of the Convention, which guarantee

freedom from torture and inhuman and degrading treatment, made it necessary for the court to

depart from normal practice and examine the merits of the decision. The decision to include Pakistan

could only have been based on an erroneous view of the facts or the law or both: the Home Secretary

was plainly wrong, and a declaration would be granted to this effect.

R V Home Secretary Ex P Anosike [1971] 2 All ER 1405, HC QBD

A 15-year-old Nigerian boy sought certiorari(an order of a superior court directing that a record of

proceedings in a lower court be sent up for review) to quash decisions refusing him admission to the

UK and requiring him to leave, and claimed the right to appeal to an independent adjudicator under

the Immigration Appeals Act 1969. Refusing the order sought, the court said s.24(5) of the Act allowed

the Home Secretary to appoint the day on which each part of the Act came into force, and the

commencement order bringing most of the Act into force had expressly excluded the subsections

giving rights of appeal against refusal of admission and directions for removal.

R V Secretary Of State Ex P Orange (2000) Times 15/11/00, Sullivan J

The Telecommunications Act 1984 limited the circumstances in which licences could be amended, but

the Minister used his general powers under s.2 (2) of the European Communities Act 1972 to repeal

parts of the 1984 Act by Order in Council. The judge said this was unlawful: where delegated powers

are to be used to repeal or amend primary legislation, the Minister must tell Parliament in clear terms

what primary legislation is affected.

Thoburn V Sunderland CC [2002] 4 All ER 156, DC

A greengrocer D was convicted of a weights and measures offence, the relevant amendment to the

Weights and Measures Act 1985 having been made by Order in Council under the European

Communities Act 1972. Laws LJ rejected the argument that Henry VIII clauses cannot be used to make

substantial changes to existing primary legislation: whether or not such changes were desirable was


another matter, but in this case the Order giving effect to a European Directive was clearly within the

powers conferred of s.2(2) of the 1972 Act.

Questions for past papers

Q1. Delegated legislation enables the fine tuning of the primary rules to take place, without

encumbering parliament as a whole. (Hilaire Branett: Constitutional and administrative law2002)

[October/ November 2004]

Q2. The use of delegated legislation has both advantages and risks as a means of law –making. Detail

the risks that exist and discuss what safeguards can be taken against them. [May/June 2005]

Q3. Delegated legislation threatens the democratic system and is too high a price to pay for its

contribution as a source of law. Discuss this statement. [October/November 2006]

Q4. There is far too much delegated legislation and too little known about it, evaluate the advantages

and disadvantages of delegated legislation, and consider to what extent you would agree with this

statement. [October/November 2007]

Q5. Explain how delegated legislation comes into existence. What are the advantages and

disadvantages of this form of law-making? [October/November 2008]

Q6. What are the main forms and purposes of delegated legislation? Consider critically the manner in

which it comes into force and the ways in which it can be regulated. [October/November 2009]

Q7. Analyse critically the main ways in which delegated legislation comes into force in England and

Wales. [October/November 2010]

Q8. Analyse critically the purpose, advantages and disadvantages of delegated legislation. [May/June

2011]

Q9. Considering the main types of delegated legislation, would you say that sufficient control is

exercised over its implementation? [October/November 2011]

Q10. Delegated legislation is an essential form of lawmaking, but it brings with it certain disadvantages. Explain the different types of delegated legislation and assess the accuracy of the above statement.

[May/June 2014]

Class Activity

Explanation of what DL is, why it is needed and how it is created.

Understand the need for controls and be able to describe the control processes. List the essential facts

concerning DL.

Understand how this material may be tested in examination.

Students complete a factsheet explanation of each type of DL, why it is needed and the available

controls. This should also include evaluative commentary.

Documents

Lecture # 8 Delegated legislation - VLCvlc.com.pk/English Legal System ELS/ELS 8 Delegated...Delegated legislation By: Salik Aziz Vaince [0313-7575311] Introduction It is true that