Revise Delegated legislation for Cambridge 9084 (1.1.3)

Delegated legislation (DL), or secondary legislation, is law created by bodies other than Parliament, using powers granted by an Act of Parliament (the 'enabling' or 'parent' Act). It is a crucial part of the modern legal system.

1. Orders in Council: Made by the Queen and the Privy Council (a body of senior politicians). They are used in emergencies (e.g., under the Civil Contingencies Act 2004), to transfer powers between government departments, or to bring Acts of Parliament into force.
2. Statutory Instruments (SIs): The most common and significant type of DL, with over 3,000 issued annually. They are made by government ministers for their area of responsibility. For example, the Minister for Transport might use an SI to update rules on driver licensing, using powers from the Road Traffic Act. Another example is SIs made under the Misuse of Drugs Act 1971 to add new substances to the list of controlled drugs.
3. Bylaws: Made by local authorities (e.g., county or district councils) and public corporations (e.g., Transport for London). They deal with local matters within their specific geographical area. Common examples include parking restrictions, banning drinking in public places, or rules for parks and libraries. Bylaws must be approved by the relevant government minister.

Parliament relies on delegated legislation for several crucial reasons:

• Saves Parliamentary Time: Parliament lacks the time to debate every detailed rule required for a complex society. The legislative process for an Act is long and detailed. DL allows Parliament to set out a broad framework in an enabling Act, leaving ministers to fill in the specifics, thus freeing up parliamentary time for major policy debates.
• Allows for Technical Expertise: Modern legislation often covers complex and technical subjects (e.g., environmental protection, medical regulations, financial services). Ministers and their civil servants have access to the necessary technical expertise that MPs may lack.
• Provides Flexibility: Delegated legislation can be created or amended more quickly than an Act of Parliament. This is vital for responding to new situations, scientific advancements, or emergencies without a lengthy legislative process.
• Permits Local Knowledge: Local authorities can create bylaws tailored to the specific needs of their area, something a national Parliament cannot do effectively. A bylaw for a coastal town will have different priorities to one for an inner-city borough.

Parliament retains ultimate authority and exercises control over delegated legislation through several mechanisms:

• The Enabling Act: This is the primary control. Parliament sets the limits on what powers are delegated, to whom, for what purpose, and often the procedure to be followed. Parliament can repeal or amend this Act at any time, thus revoking the delegated power.
• Affirmative Resolution: For more significant powers, the SI must be actively approved by a vote in both Houses of Parliament before it can become law. This forces a debate and ensures a higher level of scrutiny.
• Negative Resolution: The most common procedure. The SI is laid before Parliament and automatically becomes law after 40 days unless a motion to annul it (a 'prayer') is passed by either House. This is criticised as many SIs pass with little or no debate.
• Scrutiny Committees: The Joint Committee on Statutory Instruments (often called the Scrutiny Committee) reviews all SIs. It does not consider policy but checks for technical issues, such as if the SI goes beyond the powers of the parent Act (substantive ultra vires), is unclear, or imposes a charge on public funds. It can refer problematic SIs to Parliament for further consideration.

The courts control delegated legislation through the doctrine of 'ultra vires' (acting 'beyond the powers'). Any piece of DL can be challenged in the High Court via judicial review. If the court finds it to be ultra vires, it will be declared void and have no legal effect.

• Procedural Ultra Vires: This occurs when the correct procedure laid down in the enabling Act has not been followed. A key case is the Aylesbury Mushroom Case (1972), where the Minister of Labour was required to consult 'any organisation... representative of substantial numbers of employers'. He failed to consult the Mushroom Growers' Association (representing 85% of growers). The court ruled the regulations were void in relation to them.
• Substantive Ultra Vires: This is when the content of the delegated legislation goes beyond the powers granted by the enabling Act. In Attorney-General v Fulham Corporation (1921), a council was given power to provide wash-houses for residents to wash their own clothes. The council opened a laundry service where council workers washed the clothes. This was held to be ultra vires as it went beyond the power granted.
• Unreasonableness (Wednesbury Unreasonableness): A form of substantive ultra vires where a decision is so unreasonable that no reasonable authority could have made it. The test comes from Associated Provincial Picture Houses v Wednesbury Corporation (1948). The bar for this is very high, but it provides a safety net against absurd or irrational use of power.

While necessary, the use of delegated legislation is a subject of debate.

Advantages:

• Time-saving: Frees up Parliament to focus on major issues.
• Expertise: Allows technical matters to be handled by specialists.
• Flexibility: Laws can be updated quickly in response to new developments.
• Localism: Bylaws can be tailored to local needs.

Disadvantages:

• Undemocratic: Law-making is done by unelected civil servants or ministers, not elected MPs.
• Lack of Scrutiny: The sheer volume of SIs (over 3,000 a year) and the widespread use of the negative resolution procedure mean most are not debated or properly scrutinised.
• Obscurity: DL is often difficult for the public to find and understand, unlike Acts of Parliament which are well-publicised.
• Risk of Sub-delegation: There is a risk that the person or body given the power delegates it further down the chain, moving law-making even further from democratic accountability.