Types of Delegated Legislation

Statutory Instruments (SIs)

Created by government ministers

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

Bylaws

Local authorities make laws for a local area.

May also be made by some public corporations, eg London Underground

eg, no drinking alcohol on the streets of Bury.

eg, littering fines

Orders in Council

Made by the Queen and Privy Council

In times of emergency

Most frequently where SIs would be inappropriate

Eg Foot and Mouth crisis, 2001

UN Sanctions Order 1990

Imposed (food) sanctions on Iraq, upon invasion of Iraq

Reasons for Delegated Legislation (Advantages)

Relieves pressure on Parliamentary time

Speed

The Commons can concentrate on important laws, rather than technicalities

Contrast to average 9 months for Parliamentary statute

Food Protection Order 1986- 2 hours

Technicalities/expertise

Local knowledge

Law made by local authorities

Flexibility

Ministers will have expert knowledge of their department

Can be made at any time, as opposed to Acts that must be timetabled

Future needs

May not be catered for by statute, but can be easily altered through DL if needed

Control of Delegated Legislation

Power may be misused- bodies must be prevented making unsuitable DL

General control methods

Consultation
The creators consult experts in the relevant field; for example, a SI on road traffic law may be
referred to the AA. The enabling Act may make such consultation compulsory.

Publication
All DL is published, therefore is available for public scrutiny

Parliamentary control
Parliament, through the doctrine of parliamentary sovereignty, may revoke any piece of DL.

Affirmative Resolution Procedure

May require that all DL under a particular Act is approved by a motion in both Houses of
Parliament, with a debate and vote.

Must be passed within 40 days.

Rare, and only for parent Acts of importance

Negative Resolution Procedure

New DL displayed in Parliament

Will become law unless any MP objects within 40 days.

Parliamentary Committees

Committees from both Houses to scrutinise Parliamentary legislation

Scrutiny Committee: reviews SIs

Delegated Powers Committee: watchdog for all DL

Judicial control
Delegated legislation may be challenged in the courts
If a piece of DL goes beyond the powers granted to it by Parliament in the relevant statute, it can be
deemed ultra vires and therefore void.
There are two types of 'Ultra Vires'.
Procedural Ultra Vires: When a piece of delegated legislation is deemed to have not followed the
correct procedure which was required by the enabling act. (Aylesbury Mushroom Case 1972)
Substantive Ultra Vires: When a piece of delegated legislation is deemed to be void because it
places provisions on an area over which the enabling act did not give them the power to. (Strickland V
Hayes BC)
A piece of DL can be challenged by anyone who believes that they have been adversely affected by it.
They will apply to the High Court for Judicial Review.
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.

Evaluation of control methods

Consultation - adds a democratic element to the process

Publication - available for public scrutiny

Affirmative Resolution - again democratic, both Houses

Irrational/Unreasonable - cannot make unreasonable demands

However, control methods may not be effective:

Air Navigation Order 1995 - had to be replaced within 3 months due to defects and errors

Criticisms of Delegated Legislation

Taken from Phil Harris, An Introduction to Law

Takes legislation away from elected bodies

(except in the case of local authorities)

Some DL causes a minister to have actual legislative power

European Communities Act 1972- gives ministers power to make provisions which implement
EU policies
CLSA 1990- LC has power to amend/repeal laws on provision of legal services

Sub-delegation
Much law made by civil servants, merely rubber-stamped by ministers

Made largely in private- lack of publicity

Like statute, can suffer from obscure/difficult wording

Insufficient control
Public are frequently unaware of how to challenge it
Air Navigation Order 1995

Some enabling Acts give wide powers to Ministers

Hard to prove them acting ultra vires

Rarely possible to prevent DL being passed

Because of the Parliamentary procedures involved.