Delegated legislation in the United Kingdom
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Delegated legislationorsecondary legislationin theUnited Kingdomislawthat is not enacted by a legislative assembly such as theUK Parliament,but made by agovernment minister,a delegated person or an authorised body under powers given to them by an Act of Parliament.
Statutory instrumentsare the most frequently used type of secondary legislation, with approximately 3,500 made each year, although only about 1,000 need to be considered by Parliament. They usually have either "Rules", "Order" or "Regulations" in their title.
Secondary legislation is used for a wide variety of purposes such as fixing the date on which an Act of Parliament will come into force; setting fees for a public service; or establishing the details of an Act of Parliament. Delegated legislation is dependent on its parent act, which prescribes its parameters and procedures. Although a large volume of delegated legislation is written without close parliamentary scrutiny, there arestatutory instrumentsto prevent its misuse.
Background
[edit]Delegated legislation is derived from its parent act, which prescribes its parameters and procedures. Delegated legislation saves parliamentary time by considering matters of technical detail. Such details are prepared by those with relevant expert knowledge.
Through its inherent flexibility, delegated legislation accommodates changing circumstances such as changing fees for public services, developments in science or minor changes in government policy. Delegated legislation allows the rapid drafting of emergency powers. In comparison to Acts of Parliament, which may take much time to pass, the flexibility of delegated legislation can be used to solve problems of governance in a timely way.
Delegated legislation is effected by signature of the author or his authorized representative. In the case of the monarch, only his verbal assent is required. Astatutory instrumentrelated to the parent act is required to write delegated legislation. It ensures the legislation is catalogued and published by theKing's Printer.Exceptions are directions and by-laws where notifications are made to affected entities.
Criticism of delegated legislation may arise because:
- it is subject to a lesser degree of parliamentary scrutiny than Acts of Parliament.
- it may be used to remove from the scrutiny of the parliament matters that are causing difficulty for the government by designating them "matters concerning detail".
- within the large volume of delegated legislation there may be little public knowledge of changes being made. However, the statutory instruments are in place to prevent misuse.[clarification needed]
Types
[edit]Delegated legislation can take a variety of forms, each with different uses. The boundaries between the forms are not fixed. The types used will be determined by the wording of the parent Act.
- Orders in Councilare made by theKingon the advice of thePrivy Council(the Government). Orders in Council are used in matters of constitutional significance. An example is bringing into force emergency powers to be exercised by ministers.
- Orders of Councilare made by the lords of the Privy Council. They are used for regulation of professional bodies and the higher education sector.
- Ministerial ordersare made by ministers.
- Ordersexercise executive powers of government ministers. An example is the dissolution of apublic body.Commencement orders set the date on which an Act, or part of an Act, comes into force.
- Regulationsset out how an Act is to be implemented and are usually made by ministers.
- Rulesset out procedures for operation of a government entity such as thecourtsor thePatent Office.Rules may be made by ministers or, if specified in the parent Act, a seniorjudge.InScotland,rules of court take the form ofScottish statutory instruments.Those regulatingcivil procedureare enacted by theCourt of Sessionand are calledActs of Sederunt.[1]: Section 103 to 106 Those regulatingcriminal procedureare enacted by theHigh Court of JusticiaryasActs of Adjournal.Acts of Adjournal can modifyprimary legislationwhere it relates to criminal judicial procedure.[2]: Section 305
- Schemes are made by commissions to proscribe how entities under their remit are governed. An example is theCharity Commissionwhich supervisescharitable organizations.
- Directionsare a means by which ministers give legally binding instructions to a public body about the way it exercises its functions.
- By-lawsare laws of limited application (usually restricted to certain places) made bylocal authoritiesor certain other bodies (for example,train operating companiesor theNational Trust) to control the activities of the people in public spaces.
Layout of official documents
[edit]A document which records delegated legislation will begin with apreamble.It describes the author of the legislation, the related parent Act and its preconditions and anystakeholders.The terms used in the document are determined by the type of delegated legislation it records. For instance, in orders, clauses are called "articles". Clauses may be grouped under headings and in complex delegated legislation, the document may be divided into parts. The main text is followed by any schedules and explanatory notes.
Controls
[edit]Delegated legislation is controlled by parliament and thejudiciary.Parliamentary controls include "affirmative resolution procedures" where the legislation requires approval in both houses of parliament and "negative resolution procedures" where the legislation may bevetoedby either house. Byconvention,the House of Lords will not veto but rather pass a motion to convey its concerns about the legislation.[3]
Judicial control of delegated legislation is exercised throughjudicial review.Delegated legislation can be quashed by acourtif it is found to beultra vires(outside the parameters defined in the parent Act). There are two types of ultra vires. In "substantive ultra vires", delegated legislation is deemed void because it goes beyond the powers defined in the parent Act. In "procedural ultra vires", delegated legislation is deemed void because of some procedural deficiency. A court may also quash delegated legislation on the basis of unreasonableness.
See also
[edit]- Statutory Instrument Practice,3rd edition (June 2003),Cabinet OfficeandHis Majesty's Stationery Office
- House of Commons Information Office Factsheet L7 - Statutory Instruments
References
[edit]- ^Scottish Parliament.Courts Reform (Scotland) Act 2014as amended (see alsoenacted form), fromlegislation.gov.uk.
- ^Scottish Parliament.Criminal Procedure (Scotland) Act 1995as amended (see alsoenacted form), fromlegislation.gov.uk.
- ^"Delegated Legislation"(PDF).House of Commons Information Office. August 2011. pp. 3–4. Archived fromthe original(PDF)on 2012-10-16.