It has become a common practice for Acts of Parliament to confer
on persons or bodies, particularly Ministers of the Crown in
charge of government departments, power to make rules and regulations
for specified purposes.
Acts which confer such power are called
parent or enabling Acts, and rules made under the authority
of such Acts are known as delegated or subordinate legislation.
Delegated legislation has the same legal force as the enabling
Act. The most important types of delegated legislation are as
follows:
Orders in Council. An order in Council is drafted by a Minister,
but cannot come into force until it has been approved by a meeting
of the Queen in Council, that is, a meeting at which at least
three Privy Councillors are present. The meeting is a formality.
Rules and regulations. Rules and regulations are made by Ministers
of the Crown and government departments acting in accordance
with the provisions of enabling Acts.
Bye-laws. Statutory authority may be given to certain bodies,
particularly local authorities, to make bye-laws which are of
local application.
Statutory instruments. These comprise several types of delegated
legislation.
In quantitative terms, a Parliamentary session now produces
far more delegated legislation than Acts of Parliament, and
the use of delegated legislation is growing. The main reasons
are that:
-the enabling statutes very often deal with highly complex technical
matters. An example is the Insurance Companies Act 1982, under
which a mass of detailed regulations must be made, requiring
technical skills and knowledge which few, if any, members of
Parliament possess;
-even if members of Parliament had the necessary expertise,
Parliament does not have the time to deal with the precise details
of all legislation:
-delegated legislation is more flexible than primary legislation.
If an Act of Parliament is found to be defective it can be altered
only by the passing of an amendment Act which has to go through
the full Parliamentary process. A statutory instrument which
proves to be unsuitable can be amended or repealed by another
statutory instrument.
-delegated legislation can be put into force more speedily.
The Parliamentary procedure for enacting Bills is slow (although
there are occasions on which, in times of emergency, Parliament
is able to pass legislation very quickly.
Parliament, at the time of passing an Act, may not be able
to foresee all the problems which may arise in connection with
it. Delegated legislation can deal with such problems as and
when they arise.
There are, however a number of disadvantages
of delegated legislation as follows:
-Parliamentary control over legislation is reduced, despite
the powers of control which are mentioned below;
-arguably, there is far too much delegated legislation, so
that it is difficult to know what the law is at any particular
time. Most Acts of Parliament are readily brought to the notice
of lawyers, and even to the notice of the public if they are
of general importance, whereas very little publicity is given
to delegated legislation;
-despite the assumption, mentioned below, that delegated legislation
does not confer powers of sub-delegation, in some cases sub-delegation
is allowed. In an extreme case, there may be an enabling Act
under which regulations may be made; orders made pursuant
to the regulations; and directions made under the orders.
In such circumstances the only legislation which is under
the control of Parliament is the enabling Act and the regulations
directly made under it.
Since delegated legislation gives wide powers to a variety
of people and bodies, it is important that both the courts
and Parliament take every reasonable step to ensure that there
is no abuse of the powers conferred.
So far as the courts are concerned, their most important weapon
of control is the ultra vires (beyond the powers of) rule.
The person or body with power to make delegated legislation
must ensure that the rules and regulations made are strictly
within the powers conferred by the enabling Act. If they are
not, the courts will declare them void. There are certain
general rules which the courts apply to determine whether
or not delegated legislation is ultra vires. It is assumed
that the enabling Act, unless it contains clear words to the
contrary:
-does not confer power to make unreasonable or uncertain rules;
-does not confer any power of sub-delegation. For example,
it is assumed that where powers are conferred on a Minister
he cannot delegate them to anyone else;
-does not confer power to make retroactive rules;
-does not confer power to infringe fundamental rights, such
as the right of personal liberty;
-does not confer power to make rules levying taxes.
The courts can also declare delegated legislation to be ultra
vires if the person on whom a power has been bestowed has
failed to carry out a prescribed procedure, for example, if
he has not consulted interested parties before putting the
legislation into force.
Parliament also exercises control over delegated legislation:
-The enabling legislation is passed by Parliament, which therefore
can determine the desirability or otherwise of delegating
any particular power.
-All delegated legislation is subject to one or other of certain
Parliamentary procedures. The enabling Act may provide that
the delegated legislation must be laid before Parliament for
forty days before it comes into effect, and during this period
either House may pass a resolution to annul it. In practise,
such power is not so strong as it may appear, because the
sheer weight of delegated legislation makes it difficult for
members of Parliament to scrutinise it in the way they would
wish, and the government is under no obligation to debate
it. In other cases, an instrument must first be laid before
Parliament, which therefore knows of its existence, but has
no power to change it. Yet another possibility is that each
House of Parliament must pass a resolution approving the instrument,
in which case the government must find time for it to be debated,
otherwise it will not become law. Often there is no apparent
reason why a particular procedure is prescribed.
-Some statutory instruments cannot continue in force unless
both Houses of Parliament pass a resolution allowing them
to continue to exist.
-Some enabling Acts provide that the person to whom power
is delegated must consult interested parties before making
delegated legislation. In practice, consultation is common
whether or not the enabling Act provides for it. For example,
there is close consultation between the Department of Trade
and such bodies as the British Insurance Association before
regulations are made under Insurance Companies Acts.
-There is a Joint Committee of the House
of Lords and the House of Commons which considers:
(a) every instrument which is laid before each House of Parliament,
being:
(i) a statutory instrument or a draft thereof or scheme requiring
approval by statutory instrument;
(ii) any other instrument where the proceedings in pursuance
of an Act of Parliament are proceedings by way of an affirmative
resolution; or
(iii) An order subject to special Parliamentary procedure.
(b) every general statutory instrument not within the above
classes and not required to be laid before or to be subject
to proceedings in the House of Commons only, with a view to
determining whether the special attention of the Houses should
be drawn to the legislation on various grounds. The grounds
are that the legislation:
(iv) imposes a tax on the public;
(v) is made in pursuance of an enactment containing special
provisions excluding it from challenge in the courts;
(vi) purports to have retrospective effect where there is
no express authority in the enabling statute;
(vii) has been unduly delayed in publication or in laying
before Parliament;
(viii) has come into operation before being laid before Parliament
and there has been unjustifiable delay in informing the Speaker
of the delay;
(ix) it is of doubtful validity or makes some unusual or unexpected
use of the powers conferred by the enabling statute;
(x) calls for any special reason for elucidation;
(xi) is defective in its drafting.
-There is a House of Commons Select Committee on statutory
instruments which considers legislation which is to be laid
before and subject to proceedings in the House of Commons
only.
-There is a Standing Committee of the House of Commons which
considers the merits of statutory instruments and draft statutory
instruments which are referred to them.
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