A-Level法律-委任立法Delegated Legislation。

Revision: Delegated Legislation

Parliament passes authority to other bodies to create laws.

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 how 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, e.g. London Underground

E.g. No drinking alcohol on the streets of Bury.

Orders in Council

Made by the Queen and Privy Council

In times of emergency

Most frequently where SIs would be inappropriate

E.g. 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

……

Control of Delegated Legislation

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

General control methods

1. 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.

2. 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 scrutinize 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.

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 a piece of DL relating to them was made.

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

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