9 UK delegated legislation Introduction In this chapter we focus on an area of law which is extremely important for practical lawyers: delegated

d legislation. As the name suggests, this is legislation the responsibility for which has been delegated by Parliament to (usually) government ministers and their departments. We will briefly review the terminology used for the different types of delegated legislation. We will focus on the main type of delegated legislation, known as statutory instruments. Delegated legislation is used in a number of different ways in the United ingdom and we will review, in particular, its role in filling out the detail of 'framewor ' !cts as well

as its controversial use in relation to !"enry #III clauses! in Acts. We will discuss the roles of government departments and ministers in the drafting and approving of individual pieces of delegated legislation" Parliament's scrutiny of delegated legislation varies from patchy to non#e$istent, but we will review the negative and affirmative procedures as well as the roles of select committees. %crutiny of delegated legislation by the courts will be examined briefly, together with the controversial $egislative and %egulatory %eform &ill whose enactment by 'arliament raised fundamental (uestions about parliamentary scrutiny of the executive.

9"& 'erminology of delegated legislation )erived from a parent Act (very statutory instrument derives its authority from its 'parent' or 'enabling' !ct which gives the minister or government department the power to create it. (very statutory instrument must refer to a specific clause in the parent Act that authorised its creation.

* type of +I: regulations, rules and orders ,here are three basic types of statutory instrument: regulations) rules and orders" Although statutory instruments are usually discussed together in legal textbooks, the different types do serve slightly different functions" *egulations are intended to fill in the detail of the 'substantive' law" *ules are usually used to set out the procedures that must be followed, particularly in court processes. o ,ypically, they are drafted by -udges and other court staff. +rders have various specialised functions, including, as we have seen, bringing into force sections of !cts after they have been passed"

o ,hey are usually very short.

+earching the +I .ou will find it helpful to use www.legislation.gov.uk under !U +tatutory Instruments! to look at the wording of the statutory instruments discussed in this chapter. /ach statutory instrument has its own reference beginning !+I! followed by the year of creation0number reflecting the numerical order of creation in that year. +o, for example, +I 1223045* refers to the 45*rd statutory instrument passed in 1223: the A(uatic Animal "ealth 6/ngland and Wales7 %egulations 1223. If you do not have the +I number, use the search box in www.legislation.gov.uk

8rder in 9ouncil '+rders in ,ouncil' refer to legislation approved formally at a meeting of the Privy ,ouncil attended by the :ueen and a few senior ministers. +rders in ,ouncil include orders created by ministers as statutory instruments under their respective 'parent !cts' as well as, confusingly, referring to primary legislation created under the ,rown prerogative 6see 9hapter ;7. -ormal proclamations are also issued at Privy ,ouncil meetings"

9". Uses of delegated legislation ,here are a number of uses of delegated legislation.

3.1.<

9ommencement

We have already seen at +ection =.3 how many !cts do not 'commence' 6come into legal force7 on the date the Act is passed but are, instead, brought into force in stages by ministers using commencement orders.

3.1.1

>illing in the detail of Acts

We discussed at +ection =.? Acts of 'arliament that are sometimes described as 'framewor !cts'" ,hese are relatively short, often deal with very comple$ issues) and give ministers wide powers to ma e secondary legislation filling in the detail.

'ostal +ervices Act 12<< %ection ./ authorises the 'reasury to ma e regulations" )o you think that it would have been better to include it within the 'ostal +ervices Act 12<< itself@ Ano +IB An important issue to consider is whether or not they believe that 0Ps and members of the 1ouse of 2ords would be willing and able to contribute helpfully in debates over the technical material in this order if it had been included in the 3ill itself

3.1.* Implementation of /U )irectives /U )irectives are a form of primary legislation which we will discuss further in 9hapters << and <1. As with Acts of 'arliament, the changes that they ma e to national law often need to be implemented by secondary legislation. /xample: 0erchant %hipping (-lag %tate Directive) *egulations .4&&

3.1.4 Amending Acts of 'arliament under "enry #III clauses Although historians might debate which of /ngland!s kings was the most autocratic, it is certainly true that King 1enry 5III, between executing his wives and introducing the 'rotestant version of 9hristianity to /ngland, had some particularly harsh conflicts with the law. It is because of this that clauses in some !cts of Parliament are named after him" ,hese clauses enable ministers to amend !cts of Parliament (primary legislation) using statutory instruments" At this point, students will start to (uestion how this fits in with parliamentary sovereignty 6discussed in 9hapter *7.

 8ne argument in favour of such clauses is that this will enable ministers to ma e minor changes and amendments to an Act which would not be worth the parliamentary time it would ta e to pass an amendment !ct. ,his argument, of course, only wor s if you have confidence that ministers will not abuse this power" %ome might also wonder whether the inclusion of such a clause might encourage speedy and sloppy drafting practices by parliamentary draftsmen"

/xample: &uilding 6%epeal of 'rovisions of $ocal Acts7 %egulations 12<1 %ection &(&) and paras &4 and &&(&)(c) %chedule & to the 3uilding !ct &967 authorised the minister to pass regulations repealing these 2ocal !cts8 Do you thin it is appropriate for these provisions in $ocal Acts to be repealed by way of regulations rather than by way of Act6s7 of 'arliament@ ,here are clearly many practical and safety reasons why the same safety re(uirements should be imposed on these types of buildings throughout /ngland, rather than varying according to local area. 9iven the technical sub:ect matter, which most 0Ps and members of the 1ouse of 2ords would be unable to debate intelligently, the use of a '1enry 5III clause' here seems appropriate"

9"/ Drafting secondary legislation 3.*.< %ole of government departments Cost secondary legislation is drafted by the legal branches of the relevant government department" ,his is in contrast to 3ills that are drafted by parliamentary counsel. ,hey will wor with e$perts within their department on the technical detail re;uired and the practice of scrutiny within the department will vary. A measure of consistency between statutory instruments has been achieved through the use of the document %tatutory Instruments Practice

 Ac,ivi,y 3.; %eferring to the +tatutory Instruments 'ractice document, answer the following (uestions. In what circumstances is it a re(uirement that the minister make a statement as to the compatibility of a statutory instrument with the /uropean 9onvention on "uman %ights 6/9"%7@ Where should such a statement be recorded@ What is the title of the sample statutory instrument used to show the use of the statutory instruments template at >'<@

3.*.1 %ole of ministers and civil servant 8ccasionally, the e$act role of ministers in the creation of statutory instruments has been ;uestioned" 9iven the technical nature of much of their content and the heavy wor load under which ministers operate, it would not be surprising if sometimes a minister was compelled to trust their civil servants' :udgment and simply sign where re(uested. Donetheless, the courts have affirmed the ey constitutional relationship between ministers and their civil servants whereby ministers ta e ministerial responsibility"

 In 3ushell v %ecretary of %tate for the (nvironment 6<3=<7 $ord )iplock stated: o Discretion in ma ing administrative decisions is conferred upon a minister not as an individual but as a holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all who serve the 9rown in the department of which, for the time being, he is the political head. o 'he collective nowledge) technical as well as factual) of the civil servants in the department and their collective expertise is to be treated as the minister's own nowledge) his own e$pertise.

9"7 Parliament's role in delegated legislation Dormally did not allowed to amend but t accept or re-ect Although it is unlikely that scrutiny by C's and members of the "ouse of $ords would have benefited the C? Cotorway 6Eunctions 13F1=7 6,emporary %estriction of ,raffic7 8rder 12<1, Parliament does retain some residual powers to scrutinise some delegated legislation. Dote that these powers do not normally allow for amendment of delegated legislation, usually the choice is acceptance or complete re:ection"

3.4.<

,he negative procedure

+ome statutory instruments become law on the date stated on them but will be annulled (completely removed) if either 1ouse 6or, in the case of financial matters, the House of Commons only7 passes a motion calling for the annulment within a fi$ed period of time 6usually 74 days7. In the "ouse of 9ommons, such motions are raised as '(arly Day 0otions' and will only be debated if there are a large number of signatories" ($ample: 9ivil 'artnerships Act 1224 68verseas %elationships7 8rder 12<1 o Date made< 1< Dovember 12<1 and o Date came into force< *< Eanuary 12<*.

3.4.1

,he affirmative procedure

Under this procedure, which applies to appro$imately &4 per cent of statutory instruments, some draft statutory instruments must have the approval of both 1ouses 6or the House of Commons only in the case of financial matters7 before they come into force. A variation of this procedure applies where the statutory instrument comes into force immediately but will cease to be in force if Parliament has not approved it within a fi$ed period) usually 1= days. Ac,ivi,y 3.3 >ind the list of statutory instruments sub-ect to affirmative procedure within a statutory period at: www.publications.parliament.uk0pa0c m0cmsilist0cmsilist.htm 9hoose one statutory instrument and note how the remaining period within which parliamentary approval must be given. 9heck this webpage again

after this period to see whether parliamentary approval was obtained. 3.4.* Eoint 9ommittee on +tatutory Instruments ,his ,ommittee 6with representatives from both 1ouses7 considers whether each statutory instrument contains any technical drafting flaws. 1ouse of ,ommons %tanding +rder &=& states that the flaws to be identified as follows. o It imposes a charge on public revenues or re(uires payment to a government department or agency. o It is made under a provision in a statute purporting to e$clude it from :udicial review" o It claims to have retrospective effect when there is no express authority in the parent Act.

o ,here has been un:ustifiable delay in its publication or laying before Parliament. o ,here is doubt as to whether it is intra vires 6i.e. has been made within the legal authority of the minister who made it7. o It is unclear or has defective drafting"

 %eport of the Eoint 9ommittee on +tatutory Instruments on 1* Eanuary 12<*: What was the definition which the 9ommittee (uestioned@ Which definition did the 9ommittee prefer@ )o you think the 9ommittee was correct@

3.4.4 "ouse of $ords +elect 9ommittee on the Cerits of +tatutory Instruments ,his +elect 9ommittee is re;uired to advise the 1ouse of 2ords as to statutory instruments which are: o politically or legally important o inappropriate in the light of changed circumstances since the parent !ct was passed o inappropriately implementing (U legislation o failing to achieve their policy ob:ectives.

 %eview the statutory instruments drawn to the special attention of the "ouse in the 1<st report of the 9ommittee dated 3 Eanuary 12<* and find the discussion of the -amily Procedure (!mendment) (>o" =) *ules .4&.. ?hy do you thin the ,ommittee thought that these rules were sufficiently important to be placed in this category8 ,he ob:ective of the rules was to address concerns raised in the >amily Eustice %eview 12<1 about delays in family cases affecting children. ,his is clearly a sensitive political and legal issue, especially as the areas of change which the rules implement affect e$pert evidence which can be decisive in such cases.

9"= 'he role of the courts in scrutinising delegated legislation # :udicial review ,his area of -urisprudence is discussed in detail in 9hapters <?F<;. At this stage it is helpful to be reminded that the ey grounds of :udicial review which will be applied are: o illegality o procedural impropriety 6e.g. poor or nonFexistent consultation7 o irrationality 6illogical or morally unacceptable7 o breach of /U law o contravention of s.5 of the "uman %ights Act <33= 6"%A7 6signified by a declaration of incompatibility7.

9"@ 'he 2egislative and *egulatory *eform !ct .44@ A continuing government priority has been to try to reduce the amount of 'red tape' (i"e" unnecessary bureaucracy7 affecting business and society at large. In order to improve regulation) statutory instruments categorised as 'regulatory reform orders' are regularly created under the authority of the 2egislative and *egulatory *eform !ct .44@" ,lause & of the !ct, when presented to 'arliament, was an extremely wide !"enry #III clause! stating: o A 0inister of the ,rown may by order ma e provision for either or both of the following purposes F *eforming legislationG Implementing recommendations of any one or more of the United ingdom $aw 9ommissions, with or without changes.

 'here was considerable opposition in 'arliament and from legal commentators who highlighted the unchec ed threat to parliamentary sovereignty. &y the time the &ill was enacted, various chec s had been imposed limiting the scope of ministers' powers and increasing parliamentary scrutiny"

 *ead the discussion of the !ct and the role of the *egulatory *eform ,ommittee Which are the two Acts of 'arliament which, in whole or in part, ministers are not able to amend or repeal under the Act@ 1uman *ights !ct &996 and Part & of the 2egislative and *egulatory *eform !ct .44@. What is the !superFaffirmative! procedure@ 'his re;uires the minister to have regard to representations, "ouse of 9ommons and "ouse of $ords resolutions, and committee recommendations that are made within 52 days of laying, in order to decide whether to proceed with the order and (if so) whether to do so as presented or in an amended form.

 An order dealt with under this procedure must be e$pressly approved by both 1ouses of Parliament before it can be made. What is the maximum period of debate by the "ouse of 9ommons on a regulatory reform order which the %egulatory %eform 9ommittee recommends should not be approved@ 'hree hours.

9"A %ummary ,here are three basic types of statutory instrument: regulations, rules and orders. ,hey are organised on www.legislation.gov.uk by year of creation and order of creation within that year. %egulations fill in the detail of Acts of 'arliament, rules set out procedures 6particularly in court proceedings7 and orders fulfil specialist functions, including bringing Acts of 'arliament into force 6as !commencement orders!7. 8rders in 9ouncil, created by the 'rivy 9ouncil, may be either statutory instruments or primary legislation. %tatutory instruments may be used to implement (U Directives 6a form of primary legislation7.

 %ome !cts of Parliament include '1enry 5III clauses'" o ,hese controversial clauses give ministers the power to amend !cts of Parliament by way of statutory instruments. %tatutory instruments are normally drafted by the legal branches of the relevant government department. o A measure of consistency in drafting practices has been achieved by the use of the document %tatutory Instruments Practice" o 0inisters retain ministerial responsibility for the content of statutory instruments drafted in their names by their departments.

 Parliament retains certain powers to scrutinise statutory instruments through the use of the 'negative procedure' 6under which the statutory instrument is valid when it is !made! but can be annulled by 'arliament within a fixed period7 and the 'affirmative procedure! 6under which 'arliament must approve the statutory instrument before it takes effect7. ,he Boint ,ommittee on %tatutory Instruments includes C's and members of the "ouse of $ords and reviews statutory instruments for certain technical flaws. ,he 1ouse of 2ords %elect ,ommittee on the Cerits of +tatutory Instruments advises the "ouse of $ords on statutory instruments to which it should pay special attention on grounds which include whether or not they are politically or legally important"

 ,he courts scrutinise delegated legislation using :udicial review. ,he 2egislative and *egulatory *eform !ct .44@ enables ministers to ma e 'regulatory reform orders' to repeal !cts of Parliament in the interests of 'cutting red tape'. o %afeguards were introduced during the passage of the &ill through 'arliament, which include the use of the 'super# affirmative procedure' in certain controversial cases"