Delegated Legislation

 DL is law made by some person or body to whom Parliament has delegated its general law making power.

·         A validly enacted piece of delegated legislation has the same legal force and effect as an Act of Parliament.

·         DL = subordinate law / secondary law in the form of statutory instruments

Types of DL

1.       Orders in Council

a.       The Queen and the Privy Council have the authority to make OiC.

b.      PC: Prime Minister and other leading members of the Government

c.       PC has power to make law in emergency situations.

d.      OiC was used to alter the Misuse of Drugs Act 1971 so as to make a cannabis Class C drug.

                                 i.      Five years later, Gov decide-mistake-downgrade cannabis.

                                ii.      Another OiC was issued to change back to Class B

e.      Another enabling act: Constitutional Reform Act 2005

                                 i.      Allow PC to alter the number of judges in the Supreme Court.

2.       Statutory Instrument

a.       Refers to the rules and regulations made by Government Ministers

b.      Approximately 3000 SIs’ are issued every year

c.       Two thirds not actively decided by Plm; become law on  a specified date

d.      Normally drafted by the legal office of the relevant government department.

e.      Consultations of take place with interested bodies and parties.

f.        E.G: Southern Rhodesia Act 1965

3.       Bye-laws

a.       These are means through which local authorities and other public bodies can make legally binding rules.

b.      By-laws can also be made by public corporations and certain companies within their jurisdiction which involve the public.

Reasons why there is a need for/benefits of/advantages of DL

1.       Pressure upon Parliamentary time

a.       Plm does not have time to consider and debate every small detail of complex

2.       Technicality of subject-matter

a.       Plm may not have necessary technical expertise/knowledge required; e.g health and safety regulations,

3.       State of emergency

a.       Process of passing an Act of Plm takes a considerable time;

b.      In emergency, Plm may not be able to pass law quickly,

c.       DL is preferred because it can be amended or revoked easily when necessary.

Drawbacks/ Criticism/ Disadvantages of DL

1.       Undemocratic

o   It takes law making away from  democratically elected HoC

o   Allows non-elected people to make law

2.       Risk of sub-delegation

o   Law making authority is handed down to another level

o   Comments that much of our law is made by civil servants and merely ‘rubber stamped’ by Gov Ministers.

3.       Large volume

o   Difficult for citizens to discover what the present law is

4.       Lack of publicity

o   Much DL is made in private contrast to public debates of Plm

5.       Obscure wording

o   Words used in DL leads to difficulty in understanding and to interpret the law

Control over DL

1.       By Parliament

a.       Affirmative/ negative resolutions

                                               i.      Affirmative:

·         small number of SI will be subject to an affirmative resolution

·         Means: the SI will not become law unless specifically approved by Plm.

·         It cannot be amended by Plm; but can only be approved, annulled or withdrawn

                                              ii.      Negative

·         Most other SI subject to negative resolutions

·         Means: the relevant SI will be law unless rejected by Plm within 40 days.

b.      Scrutiny Committee

                                               i.      Reviews all SI and where necessary will draw attention of both House of Parliament to point that need further consideration

                                              ii.      Reviews are technical based

                                            iii.      SC has no power to alter any SI

2.       By the courts

a.       Judicial review

                                               i.      The judge will decide whether the DL is lawful or unlawful through judicial review

b.      Doctrine of ultra vires[it goes beyond the powers that Plm granted in the enabling act]

                                               i.      Can be challenged in Ct. On the ground that it is UV.

                                              ii.      Any DL which is rule to be ultra vires is void and not effective.