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[Delegated legislation - introduction]
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What is delegated legislation?

For practical purposes, and so as not to overload a busy legislature, powers are often conferred on the executive (Government) which enable a Minister to make delegated (or secondary) legislation. In the United Kingdom, most Acts of Parliament (primary legislation) contain such provisions.

 

Delegated legislation, in the form of statutory instruments, may be used for example to uprate certain annual grants and benefits where the basic rules have been agreed in primary legislation but the rates or amounts need to be altered from time to time.

 

Note: As well as being able to confer delegated powers on the UK executive, Parliament can grant similar powers to the National Assembly for Wales (instruments to be made by the Assembly are subject to the subordinate legislation procedures under the Government of Wales Act 1998).

 

Also called

Subordinate legislation and secondary legislation.

  • It has effect throughout the whole UK.

(Interpretation Act 1978 section 21(1))

"subordinate legislation" means Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made or to be made under any Act.

 

Delegated legislation

Only created by statutory authority. There must be a ‘parent Act’ (Enabling Act).

Using mobile phones whilst driving is banned by
Statutory Instrument No 2695 - The Road Vehicles (Construction and Use) (Amendment)(No 4) Regulations 2003. which was made by the Minister of Transport under the Road Traffic Act 1988.

 

Similarly The Traffic Signs Regulations and General Directions 2002 the Transport Minister used sections 64, 65 and 85(2) of the Road Traffic Regulation Act 1984 and section 36(5) of the Road Traffic Act 1988.

 

The enabling act provides a broad framework; Statutory Instruments (SIs) are used to provide the necessary detail that would be considered too complex to include in the body of an Act.

 

Secondary legislation can also be used to amend, update or enforce existing primary legislation.

 

Types of delegated legislation

Under strict conditions permitted bodies (other than Parliament) produce:

Types of SIs

 

Examples changes brought about by SIs:

 

Civil Procedure Act 1997

Allows the Civil Procedure Rule Committee to make rules regarding court procedure and fees in the Court of Appeal, High Court and county courts.

 

Solicitors Act 1974 s.31(1)

The Council of the Law Society is empowered to make its own rules for regulating the conduct and discipline of solicitors, for example financial penalties.

 

The General Synod of the Church of England can make provisions

Church of England (Worship and Doctrine) Measure 1974

Although some 'Measures' require Parliamentary approval for example the Priests (Ordination of Women) Measure 1993.(No 2).

 

The Treasury, in exercise of the powers conferred by section 5(2) of the Pensions (Increase) Act 1971

The former Director of Public Prosecutions has his own SI in respect of his pension, here.

Northern Ireland Act 2000 (Restoration of Devolved Government) Order 2000 (SI 2000 1445)

Made under Northern Ireland Act 2000. This Order provides that the Northern Ireland Act 2000 s.1, which provides for the suspension of the devolved government in Northern Ireland, shall cease to have effect on May 30, 2000.  And again by ministerial order in October 2002.

 

Codes of practice
Codes of Practice have limited legal force, but can be referred to in court proceedings or tribunals with devastating effect

 

The Highway Code

This well known about document is made by the Transport Minister and approved by Parliament (see inside front cover of the Highway Code) has no binding force, but it can be relied upon to establish or negative any question in any proceedings whether civil or criminal.

 

ACAS codes of practice

ACAS codes are frequently used in Employment Tribunals to establish if a party has acted reasonably,  The codes are made under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992 and are created by Statutory Instrument.

The Health and Safety Executive (HSE)

The HSE makes many codes of practice pursuant to the Health and Safety at Work Act 1974 their codes of practice are not presented to Parliament.

PACE Codes of Practice

The provisions of the Police and Criminal Evidence Act, which came into force in 1984, are intended to reflect principles of fairness, openness and workability, and to provide protections both to the individual and to the police.

 

The Codes of Practice, which are used by the police on a day-to-day basis, interpret the provisions of the Act, in somewhat simpler language and set out how PACE principles should be translated into operational policing.

 

The codes are relied upon by the police to govern their investigations and by defence solicitors to ensure that the individual is afforded his/her rights.

 

Breach of the Codes does not in itself give rise to any criminal or civil liability, but may lead to the exclusion of evidence improperly obtained and/or internal disciplinary action against police officers.

 

The Codes of Practice are brought into effect by Statutory Instrument.

The Press Code of Practice and other non statutory codes.

The Press Complaints Commission has produced a code of practice which it updates regularly in preferences to statutory controls on its activities.

Many other organisations produce codes a practice, such as

It seems almost every organisation has some form of code of practice, but by another name, charter, mission statement or something similar. None of these has a statutory basis.

 

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