Explain the 3 types of delegated legislation [10]

Delegated legislation (also known as subordinate or subsidiary legislation) refers to laws

enacted by individuals or bodies to whom parliament has delegated legislative authority.
When parliament passes Acts, every significant Act provides for the creation of
subsidiary laws and specifies who has the authority to do so under that Act. Delegated
legislation can exist only in conjunction with an enabling Act.This sort of legislation
enables the details of an Act to be worked out without the need for a new Act of
Parliament every time. There are various sorts of delegated legislation, each with its
own purpose.

Orders in council are made by the Privy Council and are used to give legal effect to
decisions made by the government or the monarch. The queen and the Privy Council
have the authority to make orders in the Council.The Privy Council is made up of the
Prime Minister and other leading members of the government. This type of delegated
legislation effectively allows the government to make legislation without it having to be
debated or voted on by the parliament.They are often used to implement international
treaties or agreements, and can also be used to make emergency regulations in times
of crisis. Orders in council are typically used for matters that require swift action and
cannot wait for primary legislation to be passed by bringing acts of parliament into
force.They are made for transferring responsibility between government departments,
for example when the ministry of justice was created the powers of the previous
department of constitutional affairs and some of the powers of the home office were
transferred to this new ministry. The dissolution of Parliament, the creation of new public
offices, or changes to the constitution of a public body might be achieved through
Orders in Council.

Statutory instruments are the most common type of delegated legislation, and are made
by ministers or government agencies under the authority of an Act of Parliament.
Statutory instruments can be very short covering one point such as making the annual
change to the minimum wage. However other statutory instruments may be very long
with detailed regulations that were too complex to be included in an Act of parliament.
For example, police codes of practice in relation to powers such as stop and search,
arrest and detention were made by the Lord Chancellor and Secretary of State for
Justice, under powers given by the Police and Criminal Evidence Act 1984. They are
used to implement detailed rules or regulations that are necessary for the effective
operation of an Act of Parliament. Statutory instruments can cover a wide range of
topics, from health and safety regulations to tax rules and environmental standards.SIs
are used to fill in the details of primary legislation, providing specific regulations and
rules necessary for the effective implementation of an Act of Parliament.The use of
statutory instruments is a major method of law making. In 2014, 3481 statutory
instruments were made but in 2019 the number was only 1410.

Bylaws are regulations made by local authorities or public bodies such as transport
authorities, health trusts or university boards. They are used to govern local matters that
are not covered by national legislation, such as parking regulations, building standards
or the use of public spaces. Bylaws are enforced by the relevant authority, and are
typically subject to public consultation before they are implemented.Bylaws can also be
made by public corporations and certain companies for matters within their jurisdiction
that involves the public. This means that bodies such as the British Airports Authority
and Railway companies can enforce rules about public behavior on or around their
premises.

In short, delegated legislation includes orders in council, statutory instruments, and

bylaws from local authorities and public bodies. It is an important tool for implementing
detailed rules and regulations that are necessary for the effective operation of an Act of
Parliament.
Assess whether the controls used by Parliament and the courts on delegated legislation
are sufficient. [15]

Delegated legislation is controlled by the Parliament and the judiciary. Parliament has
the initial control on the delegated legislation, as the enabling act will set the boundaries
within which the delegated legislation is to be made, for example the act will state which
Government Minister can make regulations.

Parliament relies heavily on scrutiny committees, such as the Joint Committee on

Statutory Instruments, to examine the details of statutory instruments. The strength of
these committees lies in their composition, often comprising members with relevant
expertise. Scrutiny committees can thoroughly examine statutory instruments,
identifying potential issues.Their ability to conduct in-depth scrutiny, however, is
hindered by the sheer volume of delegated legislation. The committees may face
resource constraints, impacting the depth and frequency of their examinations.The
scrutiny committee can only review on certain grounds Such as when a statutory
instrument is unclear or defective in some way and it has to report back its findings.
hence,it has no power to alter any statutory instrument.Despite these challenges,
scrutiny committees remain a critical component of parliamentary oversight.

Delegated powers committees contribute to the effectiveness of parliamentary controls

by assessing the proportionality and appropriateness of powers delegated to authorities.
While their reports can influence parliamentary debates, their impact is indirect, as they
lack the power to prevent the passage of legislation. Resource limitations may also
affect the depth of their scrutiny. Nevertheless, these committees serve as an important
check on the breadth of delegated powers, contributing to the overall accountability of
the legislative process.

A small number of statutory instruments will be subject to an affirmative resolution. This

means that the statutory instrument will not become law unless specifically approved by
the parliament.Legislation requiring explicit parliamentary approval undergoes a higher
level of scrutiny, providing a more robust oversight mechanism. Significant legislative
issues subject to approval receive public and political attention.However, the use of
affirmative resolutions can lead to less scrutiny compared to primary legislation. Political
considerations may influence approval decisions, potentially compromising the depth of
scrutiny. Despite these challenges, the explicit scrutiny associated with parliamentary
approval adds an essential layer of accountability to the legislative process, especially
in significant and controversial cases.
 Using the negative resolution procedure statutory instruments can become legislation
in either two ways. One of the ways it commences is when after the statutory
instruments are written, it is shown to Parliament. However, if after forty days there are
no counter arguments it instantly becomes law, if there is some concern then it is
debated upon. The other procedure is more oppressive as the Parliament does not
amend any statutory instruments in fact only one out of ten instruments are passed
under this procedure. This is because this situation has to be debated upon and by both
Houses within twenty-eight to forty days. There are disadvantages to this as it may take
longer for Parliament to raise any issues especially from other parties. In reality, it’s
highly unlikely for the Government not to reach a majority when so many votes are
taken into account.

Judicial controls on delegated legislation serve as a critical safeguard to ensure the

legality, fairness, and adherence to the intended scope of authority. The substantive
ultra vires doctrine empowers courts to declare delegated legislation "beyond the legal
power" if it exceeds the authority granted by the enabling Act. This judicial tool acts as a
strong deterrent against overreach by authorities, ensuring that regulations stay within
the intended framework set by Parliament. Courts, through the ultra vires doctrine,
provide a proactive mechanism to prevent the misuse of delegated powers and maintain
the separation of powers.The procedural ultra vires is concerned with how the
delegated legislation is made and if any required procedures have been correctly
followed. One of the primary strengths is that the procedural ultra vires doctrine ensures
that administrative authorities adhere to established procedures when creating
delegated legislation. This promotes consistency and fairness in the legislative
process.By requiring strict adherence to procedural rules, the doctrine contributes to the
rule of law. It emphasizes that even administrative bodies must act within the legal
framework and follow prescribed procedures to exercise their delegated powers.
Procedural ultra vires holds authorities accountable for their actions. It ensures that
administrative bodies are answerable not only for the content of their regulations but
also for the manner in which those regulations are formulated and enacted.Procedural
requirements can sometimes be subjective, and what may be considered a deviation
from proper procedure could be a matter of interpretation. This subjectivity may lead to
disputes over whether a particular procedural step was followed correctly.While it
ensures that the proper steps are taken, it does not address the substantive merits of
the regulation. This limited scope may leave certain issues unaddressed.

Individuals can challenge delegated legislation through judicial review, allowing the
judiciary to scrutinize the legality and procedural fairness of regulations. While this
process is reactive and depends on legal challenges initiated by affected parties, it
serves as an essential check on the potential arbitrariness or unlawfulness of delegated
legislation. Judicial review ensures that authorities adhere to procedural requirements
and that their decisions are fair, just, and within the bounds of the law.Moreover, it
serves as a mechanism for protecting individual rights, offering a remedy when
individuals believe their rights have been infringed upon by administrative actions.The
process can be time-consuming and resource-intensive, potentially delaying the
resolution of disputes. The legal complexity of judicial review cases may also pose
challenges for individuals without substantial legal expertise.

Locus standi, or legal standing, is the legal right to bring a case to court. Its strengths lie
in ensuring that only individuals or entities directly affected by a legal issue have the
right to challenge it in court. This limitation serves to maintain the integrity of the legal
process, preventing frivolous or speculative litigation. By requiring a direct and tangible
interest in the matter at hand, locus standi contributes to the efficiency of the legal
system, focusing judicial resources on cases where the impact is concrete. It can
restrict access to justice, particularly for marginalized or vulnerable groups whose
interests may be indirectly affected. This limitation may result in the denial of justice in
cases where public interest considerations or broader societal concerns are at stake.
The strict application of locus standi may also lead to situations where legitimate
grievances go unaddressed simply because the affected party does not meet the
established criteria, potentially undermining the principles of fairness and equity.

Courts play a crucial role in interpreting the legislative intent behind delegated
legislation. The judiciary's task is to ensure that regulations align with the intentions of
Parliament, addressing any ambiguity or potential misinterpretation. However, the
interpretative nature of this role introduces a degree of subjectivity, and courts must
carefully navigate the complexities of legislative language to uphold the democratic
principles inherent in the legislative process.

In conclusion, judicial controls on delegated legislation constitute a crucial aspect of the

legal framework that safeguards against the misuse of delegated powers. While these
controls are effective in upholding the rule of law and preventing arbitrary actions,
ongoing efforts to ensure judicial independence, streamline access to legal remedies,
and address interpretative challenges are essential for maintaining a balanced and
effective system of checks and balances within the realm of delegated legislation.
Parliamentary controls on delegated legislation demonstrate strengths in maintaining
accountability and legality, there is room for improvement. Enhancing the resources and
expertise of scrutiny committees, exploring innovative methods for public engagement,
and implementing safeguards against potential abuses can contribute to a more
effective and robust system of oversight within the legislative process.