PAST YEAR QUESTIONS PAPER 1: DELEGATED LEGISLATION

QUESTION 3 NOVEMBER 2004

'Delegated legislation enables the fine tuning of the primary rules to take place, without
encumbering Parliament as a whole'. (Hilaire Barnett: onstitutional and !dministrati"e #aw
$%%$&.
Discuss the accuracy of this description of delegated legislation. Do the ad"antages of delegated
legislation outweigh the disad"antages' ($)*
QUESTION 1 JUNE 2005
+he use of delegated legislation has both ad"antages and risks as a means of law,making. Detail
the risks that e-ist and discuss what safeguards can be taken against them. ($)*
QUESTION 6 NOVEMBER 2006
'Delegated legislation threatens the democratic system and is too high a price to pay for its
contribution as a source of law'. Discuss this statement. ($)*
QUESTION 3 NOVEMBER 2007
'+here is far too much delegated legislation and too little known about it.' ."aluate the
ad"antages and disad"antages of delegated legislation, and consider to what e-tent you would
agree with this statement. ($)*
QUESTION 6 NOVEMBER 2009
.-plain how delegated legislation comes into e-istence. /hat are the ad"antages and
disad"antages of this form of law,making' ($)*
QUESTION 6 NOVEMBER 2009
/hat are the main forms and purposes of delegated legislation' onsider critically the manner in
which it comes into force and the ways in which it can be regulated. ($)*
QUESTION 3 NOVEMBER 2010
!nalyse critically the main ways in which delegated legislation comes into force in .ngland and
/ales. ($)*
QUESTION 5 JUNE 2011
!nalyse critically the purpose, ad"antages and disad"antages of delegated legislation. ($)*
QUESTION 6 NOVEMBER 2011
onsidering the main types of delegated legislation, would you say that sufficient control is
e-ercised o"er its implementation' ($)*
QUESTION 5 (NOVEMBER 2012)
!nalyse critically the main types of delegated legislation. How necessary and how desirable is
delegated legislation within the legal system as a whole' ($)*
SAMPLE EXAMINATION QUESTION
/hat is delegated legislation' ."aluate the ad"antages and disad"antages if delegated legislation
as a source of law. Discuss the controls or safeguards a"ailable to control the risks.
Suggested Approac
1. Delegated legislation refers to laws made by indi"iduals and persons other than Parliament
acting under powers conferred by an enabling !ct. +he enabling !ct lays down a basic
framework of general principles and grants powers to others (go"ernment departments,
local authorities, or public or nationalised bodies& to fill in the details.
2. +he specific power to make delegated legislation is contained in an enabling pro"ision or
enabling section in the Parent0.nabling !ct. 1or e-ample , 2.34 (the enabling pro"ision& of
the .n"ironment !ct 533) (.nabling !ct& under which the Hedgerow 6egulations
(delegated legislation& were created.
3. +he output of delegated legislation greatly e-ceeds the output of !cts of Parliament , o"er
7,%%% pieces of D# made each year compared to fewer than 5%% !cts of Parliament
4. +he 7 main types of delegated legislation are:
8rders in ouncil which the 9ueen and the Pri"y ouncil (made up of the Prime
:inister and other leading members of the go"ernment& ha"e the authority to make.
8rders in ouncil which are used to gi"e legal effect to .uropean Directi"es and to
declare a state of emergency under the .mergency Powers !ct 53$%.
2tatutory ;nstruments (2;s& refer to rules, regulations and orders issued by
go"ernment ministers and departments under powers gi"en to them by !cts of
Parliament. 2;s is national in effect and is used to add technical rules to the general
framework in the enabling !ct. :inisters and go"ernment departments are gi"en
authority to make regulations for areas under their particular responsibility.
By laws are made by local authorities to co"er matters within their own area and by
public and nationalised bodies for matters within their <urisdiction. 1or e-ample , the
British 6ailways Board Bylaws 53=), this was created under powers conferred by the
+ransport !ct 53>$. ;n Boddington B!iti"# T!$n"%o!t &o'i()* the defendant was
con"icted for smoking on the rail ser"ice.
5. +he ad"antages of delegated legislation include the following:
+he fact that owing to insufficient parliamentary time, Parliament does not ha"e the
time to debate e"ery detailed rule necessary for efficient go"ernment and hence
Parliament can lay down the basic framework and lea"e others to fill in the details
using delegated legislation.
+he highly specialised and technical nature of many of the regulations means that the
ma<ority of the :Ps do not ha"e the technical knowledge or e-pertise to consider
such pro"isions effecti"ely. 1or e-ample , building regulations or safety at work
rules.
+he fact that delegated legislation can be created more ?uickly and is ?uicker and
easier to update than an !ct of Parliament. D# is often made in response to
emergencies, urgent problems and matters which Parliament did not foresee.
:inisters can ha"e the benefit of further consultation before regulations are drawn
up.
+he facts that local by laws in particular can only be made with awareness of the
locality
6. +he disad"antages of delegated legislation include the following
+hat it undermines parliamentary so"ereignty as persons or bodies other than
Parliament are making a large amount of legislation and this contradicts
constitutional theory. Delegated legislation is also not always laid before Parliament.
."en if the D# is re?uired to be laid before Parliament, most become law under the
@egati"e 6esolution Procedure or the !ffirmati"e 6esolution Procedure
#ack of democratic in"ol"ement as it is usually made by ci"il ser"ants and not
elected politicians. +his is not a problem where delegated legislation takes the form
of detailed administrati"e rules but can cause problems if it is used to implement
important policies.
Delegated legislation gi"es too much power to a politically moti"ated e-ecuti"e.
+here is too much delegated legislation and insufficient controls.
7. Delegated legislation results in transferring law,making powers from the
legislature to the e-ecuti"e. 2ince delegated legislation is not directly made by
elected representati"es effecti"e checks and controls are needed to ensure
accountability and to pre"ent misuse. 1urther, there is too much delegated
legislation being created without attendant publicity or debate unlike law made by
Parliament.
8. .ffecti"e super"ision is difficult as there is too much delegated legislation.
Howe"er, there are se"eral controls on delegated legislation
9. !ll delegated legislation is published and a"ailable for public scrutiny.
Howe"er publication has limited benefits as the public is generally unaware of
delegated legislation, the grounds to challenge and how to challenge.
10. onsultation with persons and e-perts in rele"ant field and bodies likely to
be affected by the delegated legislation. 2ome enabling !cts make consultation
compulsory. 1or e-ample , under the @ational ;nsurance !ct 53A>, draft regulations
must be submitted to the @ational ;nsurance !d"isory ommittee.
6. Parliament e-ercises control o"er D# in the following ways: (first three enough&
Bnder the affirmati"e resolution procedure the statutory instrument will not become law
unless specifically appro"ed by one or both houses of Parliament. +he need for affirmati"e
resolution will be included in the enabling !ct for e-ample 2.54$ ()& of the riminal
Custice and Public 8rder !ct 533A. +his procedure is less common but pro"ides more
control than the negati"e resolution procedure. +he disad"antage is that Parliament cannot
amend the proposed legislation. ;t can only appro"e, annul or withdraw the proposed
legislation. Howe"er owing to limited Parliamentary time and a Do"ernment ma<ority in
the House of ommons only rarely will the delegated legislation not be appro"ed.
Bnder the negati"e resolution procedure , the delegated legislation will be laid before
Parliament and will be law unless it is re<ected by Parliament within A% days this is not
much of a control. Howe"er, the ma<ority of !cts only re?uire this, this control assumes
that :Ps (particularly 8pposition :Ps& ha"e had time to take an interest in a particular
piece of delegated legislation to read it and understand its implications.
+he 2crutiny ommittee is responsible for scrutinising all statutory instruments made in
e-ercise of powers granted by !cts of Parliament. +he scrutiny committee does a technical
(not policy& re"iew of delegated legislation as no consideration is gi"en to the merits of the
legislation. +he main grounds for referring a statutory instrument back to the Houses of
Parliament are that:
, it appears to ha"e a retrospecti"e effect which is not pro"ided by the enabling !ct,
- it is unclear or defecti"e,
- it is ultra "ires the powers conferred in the enabling !ct
- it imposes a ta- or charge
+he nature and scope of the powers to delegate are laid down in the .nabling !ct. Howe"er
enabling acts usually confer e-tremely wide discretionary powers on :inisters and there is
not much room for a pro"ision made thereunder to be considered ultra "ires.
!ll statutory instruments are issued sub<ect to the legal re?uirements of the 2tatutory
;nstruments !ct 53A>.
+he #egislati"e and 6egulatory 6eform !ct $%%> now sets the procedure for the making of
statutory instruments which are aimed at repealing an e-isting law in order to remo"e a
'burden'. Burden means (a& a financial cost (b& an administrati"e incon"enience (c& an
obstacle to efficiency, producti"ity or profitability or (d& a sanction, criminal or otherwise
which affects carrying on of any lawful acti"ity.
5$. +he courts can e-ercise control o"er delegated legislation through <udicial re"iew which is
heard in the !dministrati"e ourt. /hile the "alidity of a statute can ne"er be challenged by
the courts because of parliamentary so"ereignty. Delegated legislation can be challenged
through <udicial re"iew, on the basis that the person or body to whom Parliament has
delegated its authority has acted in a way that e-ceeds the limited powers delegated to them.
!ny pro"ision found to be outside this authority was ultra "ires and conse?uently "oid.
Procedural Bltra Eires occurs where the aggrie"ed person is challenging the "alidity of
the delegated legislation on procedural grounds. ;n !gricultural Horticultural and
+o!)"t!, Ind-"t!, T!$ining Bo$!d .,')"/-!, M-"#!oo0 1td2 an order was declared
in"alid as against mushroom growers because the re?uirement to consult with interested
parties (here the :ushroom Drowers !ssociation& before making it had not properly
complied with. (Howe"er the order was "alid in relation to others affected by the order,
such as farmers, as the :inister had consulted with the @ational 1armers Bnion.*
2ubstanti"e Bltra Eires occurs where the aggrie"ed person is challenging the "alidity of
D# based on a claim that the measure under re"iew goes beyond the powers conferred
by the .nabling !ct ;n ommissioners of ustoms and E3(i") 4))'), 1td (1952) the
High ourt in"alidated the regulation made under the 1inance @o.$& !ct 53A% on the
ground that they e-ceeded the powers conferred by the !ct. +he ommissioners were
only empowered to collect such ta- as was due by law, not to decide what amount they
thought fit. Cudicial re"iew by the courts is not that effecti"e a control as it relies on
indi"idual challenges being brought before court by someone affected by the pro"ision
(who has locus standi) and is prepared and able to challenge it. Cudicial re"iew is
e-pensi"e and time consuming and the rules are not straightforward. !ggrie"ed citiFens
generally do not know when, how and whether they can initiate a claim.
57. ourts may hold particular delegated legislation to be "oid on the basis that it is
unreasonable, made in bad faith or so per"erse that no reasonable official could ha"e made
them. ;n St!i(t'$nd 6$,)"7Bo!o-g# 8o-n(i' (1596) a by,law prohibiting the singing or
reciting of any obscene song or ballad and the use of obscene language generally was held
to be unreasonable and so ultra "ires, because it was too widely drawn in that it co"ered
acts done in pri"ate as well as those done in public.