4.11 Judicial control Delegated legislation is also subject to control by the courts whose judges can declare a piece of delegated legislation to be
ultra vires. Ultra vires means ‘beyond powers’, so the court would be saying that a piece of delegated legislation went beyond the powers granted by Parliament within the enabling Act. If the court does this, then the delegated legislation in question would be void and not effective. There are two types of ultra vires:
4.10 Parliamentary control Initially, Parliament has control in that the enabling or parent Act passed by Parliament sets out the framework or parameters within which delegated legislation is made. In addition, there are scrutiny committees in both Houses of Parliament whose role is to consider the delegated powers proposed by a Bill. However, these committees have limited power. European legislation is considered by a specific committee and local authority byelaws are usually subject to the approval of the Department
4.9 The control of delegated legislation You may have been surprised to read that through delegated legislation an enormous amount of law is made every year outside of the democratically elected parliamentary process and therefore this law is being made by non-elected people. There are, however, certain safeguards to ensure that delegated legislation is controlled by way of both parliamentary and judicial control. Except for third party materials and otherwise stated (see Author(s): 4.8 Professional regulations Certain professional bodies, such as The Solicitors Regulation Authority, have delegated authority under enabling legislation to regulate the conduct of their members. The Solicitors Regulation Authority has power to control the conduct of practising solicitors under the Solicitors Act 1974. The General Medical Council regulates the conduct of its members under the Medical Act of 1858. It has four main functions: to keep up-to-date registers of qualif 4.7 Court Rule committees Court Rule committees have delegated powers from such Acts as the Supreme Court Act 1981, the County Courts Act 1984 and the Magistrates’ Courts Act 1980, to make rules which govern procedure in particular courts. For example, the Criminal Procedure Rule Committee was established in 2004 to make rules of procedure for all the criminal courts in England and Wales, up to and including the Court of Appeal (Criminal Division). The Family Procedure Rule Committee was set up under the Courts Act 4.6 Orders in Council These are more correctly called Orders of the Legislative Committee of the Privy Council. The Government can make law through the Privy Council without going through the full parliamentary process. Orders in Council can be used by the Government in times of state emergency under the Emergency Powers Act 1920 and the Civil Contingencies Act 2004. However, they are also used to give legal effect to European law under the European Communities Act 1972 and to amend other types of law. An e 4.5 Byelaws Byelaws can be made by local authorities and certain other public corporations and companies concerning issues within the scope of their geographic or other areas of responsibility. So, a County Council can make byelaws affecting the whole county, whilst a District or Town Council can only make byelaws for the district or town. Byelaws are usually created when there is no general legislation that deals with an issue that concerns people in a local area. If a council wishes to make a byelaw it 4.4 Statutory Instruments The vast majority of delegated legislation is in the form of Statutory Instruments (SIs). SIs are rules and regulations made by Government ministers acting under the delegated power given to them or their department by Parliament in a broadly drafted parent or enabling Act concerning their area of responsibility, for example, health or transport or education. SIs are normally drafted by the legal department of the minister concerned and are just as much part of the law as their parent or enab 4.3 Types of delegated legislation There are different types of delegated legislation: Statutory Instruments byelaws Orders in Council Court Rule committees professional regulations. Except for third party materials and otherwise stated (see terms and conditions), this content is made available Law making in the House of Commons and House of Lords One of the main functions of both Houses of Parliament is to discuss, debate and pass new laws. Laws made by Parliament are called Acts of Parliament. Acts of Parliament are also known as statutes or legislation. These terms all mean the same thing and will be used interchangeably throughout this unit. Acts of Parliament may originate in various ways: party manifestos national emergency, crisis or new development The House of Commons The members of the House of Commons are elected by the public, with the country being divided into constituencies and each of these returning one Member of Parliament (known as an MP). There must be a general election every five years, though an election can be called sooner by the Prime Minister. The Government of the day is generally formed by the political party which has the most MPs elected to the House of Commons. The Prime Minister will usually be the leader of the largest political pa 2.1 The Houses of Parliament In this unit we will be concentrating on how Acts of Parliament are made in England and Wales. Scotland and Northern Ireland have separate procedures for making legal rules, although they are largely similar. In England and Wales, Parliament consists of the House of Commons and the House of Lords. The site of the Houses of Parliament is the Palace of Westminster in London. The Palace of Westminster was a royal palace and the former residence of monarchs. The UK Parliament dates f 1 Rule making in England and Wales One of the most important functions of any legal system is to state the legal rules by which the society in question is to operate. Legal rules are not necessarily the only codes which prescribe social behaviour (morals and etiquette are others), but legal rules are distinct in that they constitute an official code which has the backing of state powers of enforcement and sanctions. This unit explores the major sources of legal rule making in England and Wales – the Westminster Parliament. M 7.3.1 Stages of a Bill 1 First reading: The title of a Bill is read out and copies of it are printed, but no debate takes place. There will be a vote on whether the House wishes to consider the Bill further. 2 Second reading: The general principles contained in the Bill are debated by MPs. Frequently, the second reading stage is the point at which public attention becomes drawn to the proposal through press coverage, and on occasion, vociferous campa 7.2 Preparing and drafting a Bill A period of preparation of a Bill allows time to scrutinise evidence on the policies underlying Bills, and to consider whether Bills can be improved before they are introduced. Proper preparation of a Bill should lead to better-informed debates on Bills when they are introduced, and may save time by identifying problems at an early stage. This period of pre-legislative scrutiny allows valuable time for consideration, and therefore helps to avoid introducing laws that are unworkable. Consultat 7.1 Reserved and devolved matters As stated earlier, the UK Parliament can still legislate on reserved matters and also on devolved matters, with the agreement of the Scottish Parliament. This section looks at the law making process at Westminster. It is a very different process, which involves both the Houses of the Westminster Parliament. An Act of the UK Parliament also starts off as a Bill, which, if approved by a majority in the House of Commons and the House of Lords, will become an Act of the Westminster Parliame 6.7 Royal Assent Section 32 of the Scotland Act provides that a Bill, once passed, must be submitted for Royal Assent. This is done after a period of four weeks. During that time, the Bill is subject to legal challenge by the Advocate General for Scotland, the Lord Advocate or the Attorney General, and may also be subject to an order made by the Secretary of State. The Presiding Officer may, however, submit the Bill for Royal Assent after less than four weeks if notified by all three Law Officers and the Secr 5.2 Further information about devolution You might want to look at some other OpenLearn units that consider devolution: DD203_2 Nationalism, self-determination and secession DD203_1 The politics of devolution DD200_1 A Europe of the regions? Except for third party materials and otherwise stated (see terms and conditions 6.1 Introduction We have now looked at how formal rules are formulated, and at some of the strategies that may be deployed when interpreting them. In this part we will take this one step further and explore in more detail something that we have already touched on and thought about – the application of rules. This is a really important thing to understand, since rules are designed to regulate conduct, and have to be applied to instances of the conduct with which they are concerned. 5.3 Summary of Part D After studying Part D you should be able to: explain the difficulties of interpreting written statements; explain what is meant by indeterminacy; explain what is meant by interpretive strategies; describe the literal approach to interpretation; describe the approach to interpretation which seeks to avoid absurdity; describe the approach to interpretation which looks t
