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In the "United Kingdom, delegated legislation is legislation or law that is passed otherwise than in an "Act of Parliament (or an "Act of the Scottish Parliament, "Northern Ireland Assembly or "National Assembly for Wales). Instead, an enabling Act (also known as the parent Act or empowering 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.[1]

Delegated legislation can be used for a wide variety of purposes, ranging from relatively narrow, technical matters (such as fixing the date on which an Act of Parliament will come into force, or setting the level of fees payable for a public service, e.g. the issue of a "passport), to filling in the detail of how an Act setting out broad principles will be implemented in practice.

Contents

Advantages and disadvantages[edit]

The use of delegated legislation has a number of advantages.

Firstly, it allows laws to be enacted without using up scarce Parliamentary time on technical matters, for example the fine detail of a public sector pension scheme[2] or the precise design of "traffic signs,[3] thereby freeing Parliament to discuss matters of broad principle and policy.

Secondly, it allows laws relating to technical matters to be prepared by those with the relevant expert knowledge.[4]

Thirdly, delegated legislation is flexible enough to deal speedily with changing circumstances, for example increasing costs of services, developments in scientific knowledge or minor changes in policy. This also makes it invaluable 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.[5]

Delegated legislation can also be criticised on the grounds that it is subject to less parliamentary scrutiny than primary legislation (but see the article on "Statutory Instruments for a description of the parliamentary controls which are in place), and thereby may potentially be used by the Government in ways which Parliament had not intended or appreciated when it conferred the power.

This is particularly the case where an Act empowers Ministers to use delegated legislation to amend primary legislation (so-called "Henry VIII powers"). For example, the "Deregulation and Contracting Out Act 1994 allowed Ministers to change certain Acts of Parliament by way of statutory instrument, without going through the normal parliamentary legislative process. This power was later extended by the "Regulatory Reform Act 2001 and the "Legislative and Regulatory Reform Act 2006, although more rigorous parliamentary controls were introduced.

Similarly, delegated legislation may be viewed as a way of removing controversial matters (for example, "immigration rules) from the remit of Parliament and putting them under the control of the Government, because they can be regarded as matters of detail.

'Coygn' rules:

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.

However, there are both parliamentary and judicial controls on delegated legislation which are discussed below.

Types of delegated legislation[edit]

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.

Making of delegated legislation[edit]

Delegated legislation is usually made by being signed by the person making it (or an authorised 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 (however the fact that this has been given is recorded through the signature of the Clerk to the Privy Council).

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,[8] and "by-laws made by a "local council may be publicised through an announcement in local newspapers.[9]

Layout of delegated legislation[edit]

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:

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.

Controls over delegated legislation[edit]

There are both parliamentary and judicial controls over delegated legislation.

The parliamentary controls, 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 (the affirmative resolution procedure), or be subject to a veto by either House within a certain period of time after it is made (the negative resolution procedure), are described in detail in the article on "Statutory Instruments. There is a "constitutional convention that the House of Lords does not vote against delegated legislation, instead passing a motion that sets out their concerns while still allowing the legislation to pass.[10]

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 (Parent or Enabling Act) for a specified purpose, rather than by Parliament exercising its "sovereign law-making powers, it can be quashed by the "courts if they conclude that it is "ultra vires (literally, outside the powers conferred by the parent Act). There are two types of ultra vires, that being Substantive ultra vires, meaning the substance of the subordinate legislation has gone beyond the powers set out by the Parent Act and is therefore deemed void. - Commissioners of Customs and Excise V Cure and Deeley Ltd (1962). The second ultra vires is Procedural ultra vires, which means the procedure taken into making the delegated legislation has gone beyond the powers set out by the Parent Act. - Aylsebury Mushroom Case (1972). The final form of judicial control is unreasonableness. This literally means that the secondary legislation is simply so unreasonable that no reasonable person would make such a law and therefore on those grounds it is deemed void by the courts and quashed. - R(Rogers) V Swindon NHS Trust (2006).

Devolution[edit]

"Acts of the Scottish Parliament, "Acts of the Northern Ireland Assembly and "Measures of the Welsh Assembly may also confer the power to make delegated legislation.

Whilst Scottish or Northern Irish Acts, and Welsh Measures, draw their constitutional legitimacy and legal effect from the enabling Acts of the Westminster Parliament establishing the Parliament and Assembly, they are classified as primary, not delegated, legislation.

Bibliography[edit]

Notes[edit]

  1. ^ See House of Commons factsheet, page 2 and "List of Statutory Instruments of the United Kingdom
  2. ^ See, for example, the National Health Service Pension Scheme Regulations 2008
  3. ^ See the Traffic Signs (Amendment) Regulations 2006
  4. ^ For example, the Air Navigation Order 1995 contains highly technical rules (including tables, maps, etc) governing the flying of civil aircraft within the United Kingdom
  5. ^ For example, The Export and Movement Restrictions (Foot-and-Mouth Disease) (No.2) Regulations 2007 were made at 5pm on 5 December 2007 and came into effect at 6pm the same day
  6. ^ Scottish Parliament. Courts Reform (Scotland) Act 2014 as amended (see also enacted form), from "legislation.gov.uk.
  7. ^ Scottish Parliament. Criminal Procedure (Scotland) Act 1995 as amended (see also enacted form), from "legislation.gov.uk.
  8. ^ Power to make an order under section 95(1) of the National Health Service Act 2006 excluded from the requirement to use a statutory instrument by section 272(3)(b) of that Act
  9. ^ Local Government Act 1972, section 236
  10. ^ "Delegated Legislation" (PDF). House of Commons Information Office. August 2011. pp. 3–4. Archived from the original (PDF) on 2012-10-16. 
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