Sources of Law Delegated Legislation AS Level Law Sources of Law Delegated Legislation Notes:

AS Level Law What you need to know: The main types of delegated legislation How delegated powers are controlled What you need to discuss: The advantages and disadvantages of delegated legislation Notes: The effectiveness of the various forms of control

AS Level Law Introduction Delegated legislation is law made by individuals and institutions acting under a grant of legislative authority from Parliament Delegated powers are usually granted in an enabling Act Notes: This Act will establish a framework of general principles and grant powers to fill in the details (e.g. HASAWA’74)

AS Level Law Types of Delegated Legislation statutory instruments - rules, regulations and orders, issued by ministers, national in effect byelaws - issued by local authorities (and some public corporations), local in effect Notes: Orders in Council - issued by the Privy Council, generally only used in emergencies

AS Level Law Reasons for/Advantages of DL to save parliamentary time to deal with complex and technical issues (e.g. health and safety regulations) quicker and easier to amend and update than primary legislation Notes: able to respond quickly to emergencies allows for local variation to meet local need

AS Level Law Need for controls DL results from transferring law-making powers from the legislature to the executive therefore delegated powers must be subject to effective checks and controls to ensure accountability and prevent misuse Notes:

AS Level Law Consultation often required by the enabling Act acts as a check in two ways: directly - by requiring a public exercise of the power Notes: indirectly - may form the basis for judicial review

AS Level Law Parliamentary oversight may seem to conflict with need to save parliamentary time however, a responsible Parliament must monitor the use of powers it has delegated two main forms of oversight: Notes: affirmation process scrutiny committee

AS Level Law Affirmation process most SIs must be affirmed before coming into force positive affirmation - instrument only comes into force after approval by positive resolution in Parliament negative affirmation - instrument comes into force unless annulled by a negative resolution in Parliament negative more common BUT reliance on this may mean draft instruments receive inadequate policy scrutiny Notes: Hansard Society proposed to refer draft SIs to relevant departmental select committee for policy review before affirmation - not implemented

AS Level Law Scrutiny Committee reviews technical merits of all draft SIs refers to Parliament those giving cause for concern (e.g. unusual or unexpected use of the power) therefore Committee acts as a filter so that Parliament need only consider the small number of instruments referred Notes:

AS Level Law Judicial Review limited nature of delegated powers means that courts can annul DL where it is ultra vires (outside or beyond the power) substantive ultra vires - subject matter outside scope of power (A-G v Fulham Corp [1921]) procedural ultra vires - subject matter intra vires but serious failure to comply with a mandatory procedural requirement - e.g. failure to consult (Agricultural Training Board v Aylesbury Mushrooms [1972]) Notes:

AS Level Law Conclusion DL inevitable and beneficial Executive law-making needs effective checks and controls present controls are largely adequate Notes: need to improve policy review of draft SIs by Parliament

AS Level Law Revision Headings: DL - Intro (definition, enabling acts etc) DL - Types of DL - Reasons for DL - Need for controls DL - Consultation DL - Parliamentary oversight DL - Judicial review DL - Conclusion Notes:

AS Level Law Test Questions: Using your cards, you should now be able to write a short paragraph in response to each of the following questions: Define what is meant by delegated legislation and how delegated powers are granted. Describe the main forms of delegated legislation. Identify the main reasons for and advantages of delegated legislation. Explain why checks and controls are needed over the use of delegated powers. Describe the existing check and control mechanisms. Evaluate the effectiveness of these mechanisms. Notes:

AS Level Law Useful Websites: For more information on delegated legislation generally, visit www.parliament.uk/works/newlaw.cfm#newdeleg For more information on Statutory Instruments and Orders in Council there is a House of Commons Factsheet (No.14) available at www.parliament.uk/commons/lib/fs14.pdf Notes: