Chelsea Whyte Block C Delegated Legislation and Law Reform – All Parts a) Plan: Intro – What is the Law Commission? P1 – How the Law Commission works P2 – Repeal of statutes & Consolidation of statutes P3 – Codification of statutes P4 – Success of the Law Commission Conclusion – Summarise all points Answer The Law Commission is the main Law reform body in England and Wales that was designed to keep the law under a constant review to make sure it is kept up to date and relevant to society. The Law Commission was set up in 1965 and came into force under the Law Commissions Act. It is made up of the Chairman, who is usually a High Court or Appeal Court judge and four law commissioners who are made up of people with different areas of the law that they specialise in. They are also assisted by support staff and parliamentary draftsmen (to help with producing draft Bills). How the Law Commission works The Commission has topics of law referred to it by the Lord Chancellor or other Government agencies. It can also seek approval from the Government to reform topics that the law commission itself has picked out specifically for reforming. The Commission itself may work on a number of projects at a time, usually somewhere between 20 and 30. To start of the Commission will research the area of law under scrutiny and look for the problems. Once the issues have been established the Law Commission will look at the laws in other countries to see how they deal with the problems. They will then produce a consultation paper which will outline the current law and its issues, and then point out possible ways it could be reformed, with reference to the research they have carried out. This consultation paper is open for any comments or notes and once this has happened the Commission will produce a report with a draft Bill that outlines the Commission’s views on how the law should be reformed. The Bill then has to go through all the necessary stages of Parliament so that it can be passed as an Act. Repeal and Consolidation of statutes As society changes some statutes go out of date or just become ineffective but are still on the statute book, therefore, the Commission needs to get rid of them so that there is no dispute over cases concerning the matter. It does this by creating a Statute Law (Repeals) Bill which Parliament are asked to pass. Sometimes a whole Act is repealed but other times it is only the unnecessary parts of it. The Statute Law Repeals Act 1995 revoked 223 whole Acts or orders and 259 parts of other Acts. Where there are many statutes on one topic of law it can cause confusion and time wasting as to find the appropriate piece of legislation someone may have to look though a number of statutes, therefore the law needs to be consolidated. The Law Commission does this by producing consolidation Bills which tie in all the previous legislation neatly into one Act, however this is an on-­‐
going process because as one section of the law is sorted, another is being disrupted by Parliament introducing new Acts. An example of this is the Powers of Criminal Courts (Sentencing) Act 2000 which consolidated this area of the law, but then Parliament introduced the Criminal Justice and Courts Services Act 2000 which basically eradicate most of the work that was put into the previous Act and once again scattered that topic of law into multiple legislation. Codification of statutes Under the Law Commissions Act 1965 it stated that one of the things that the Law Commission had to do was sort the law into different sections to make it easier to find legislation. Initially this was supposed to be done by sorting the law into four different sections; family law, contract law, landlord and tenant laws and the law of evidence. However, this proved to be the wrong approach to take and the Law Commission decided to instead divide the law up into smaller sections that it could add to later, this is known as the ‘building block’ approach. As of yet the Law Commission still hasn’t mastered the criminal codification system, although the Law Commission did work with three leading academics to produce a draft Criminal Code published in 1985. But when this was presented to Parliament it was not even considered as a policy. There were two parts to the draft; part one focused on the general principles of criminal liability and part two grouped specific offences into five chapters which contained other offences of a similar sort. The Commission then decided that as there were so many areas of criminal law they should split it up into smaller sections and work on codifying those; for each smaller section they would produce a draft Bill. The first Bill that they produced was based around ‘offences against the person’ (1993), this was supposedly to help the courts and lawyers understand the meanings of the statutes and in the following year the House of Lords devoted two days to identifying the meaning of ‘inflict’ and ‘cause’ under the Offences Against the Person Act 1961; they proposed that if disputes like this could be solved by a Bill then it would save time in court. However, Parliament didn’t take out time to debate the matter surrounding these Bills and so in 2008 the Law Commission abandoned its plans for the criminal code. Success of the Law Commission Initially the success of the Law Commission’s proposals was very high with the first 20 being enacted within an average of two years, some of which were; the Unfair Contract Terms Act 1977 and the Criminal Attempts Act 1981. In the first 10 years 85% of the Commission’s proposals were introduced by Parliament, but in the next 10 years this dropped to only 50%. It was said that this huge drop in numbers was due to lack of Parliamentary time and therefore, Parliament weren’t able to debate or discuss the matters. However, the worst year for law reforms was 1990 in which none of the suggested reforms were introduced; by 1992 there were 36 proposals still awaiting Parliament’s attention. Although it is fair to say that in more recent years the success rate for newly proposed reforms has picked up, a of 2008 there were still some proposals dating back to 1991 that hadn’t been considered by Parliament. One more recent reform which is very important is the Corporate Manslaughter and Corporate Homicide Act 2007 which brought these laws up to date and made it so that a company or organisation can be held responsible for deaths caused by the way their organisation works. The Law Commission plays a vital role in keeping British legislation up to date, this is done by repeals, consolidation and codification. By doing this they are able to make sure that there are no ridiculous or ineffective laws in place. b) i) If the regulations made by the Government Minister were to go under judicial review it would be successful, this is because under the Legislative and Regulatory Reform Act 2006 the Minister, when in the process of making new legislation, must consult ‘organisations which are representative of interests substantially affected by the proposals’ which he did not. Therefore his legislation would be declared procedurally ultra vires (not having followed the correct procedures) and would become ineffective. This happened in the case of Aylesbury Mushroom (1972) in which the Minister of Labour failed to consult all appropriate parties and so his legislation establishing a training board was deemed void and no longer had any effect on mushroom growers. ii) The minister was delegated the power to make regulations concerning legal funding, and when he decided to make laws surrounding immigration it was substantively ultra vires (Gone beyond the powers given to him in the enabling Act). This can be seen in the case of R v Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants where the Secretary of State for Social Security introduced legislation that meant social security benefits would not be given to people who ‘sought asylum after the entered the UK, rather than immediately on entry, or those who had been refused leave to stay here and were awaiting the outcome of appeals against the decision’, in this case the powers exercised by the Secretary of State for Social Security were beyond those he was delegated in the enabling Act and therefore ultra vires. If this case was to go for judicial review it would be successful in that the legislation was made unlawfully. iii) The judicial review of this case would be successful; this is because the courts – when looking at delegated legislation – are told to presume that, unless specifically said otherwise in the enabling Act, there is no power to make unreasonable legislation. An example of this is Strictland v Hayes Borough Council (1896); a bylaw which prohibited the singing or reciting of any obscene song or ballad and the use of obscene language in general was imposed. However, this legislation was thought to be unreasonable – and therefore ultra vires – as it did not specify whether the acts were just those done publically or if it included those done privately as well. c) Plan: Intro – What are the three types of delegated legislation? P1 – Statutory Instruments P2 – The Legislative and Regulatory Reform Act 2006, refer to source P2 – Orders in Council P3 – Bylaws Conclusion – summarise all points Answer An alternative of Parliament making legislation is the rules and regulations made within delegated legislation and although these are not made by Parliament the people who make them are given the authority by parliament in an enabling/parent Act. The enabling Act will state the basic outlines of the law and then delegate to others the power to make the law more detailed and specific. The three main forms of delegated legislation are Statutory Instruments (as mentioned in the source), Orders in Council and Bylaws. Statutory Instruments Statutory instruments are made by Government departments or Ministers regarding their area of authority. There are about 15 Government departments in total which means that each department has specific areas of policy that they are entitled to make statutory instruments for. For example the Minister for Work and Pensions could, if necessary, make legislation concerning health and safety at work. Statutory instruments vary in length with some enforcing one point whilst others are very complex and outline regulations that would have been inappropriate for an Act of Parliament. There are over 3000 statutory instruments brought into force each year; they make up most of England and Wales’ delegated legislation. Each statutory instrument has to be approved by Parliament; however, this is not always directly. There are two processes, the first of which is by means of an affirmative resolution. If a statutory instrument has to go through an affirmative resolution procedure the enabling Act will make it clear. This method is the least common out of the two and means that Parliament has to vote and discuss the regulations in either the House of Commons or the House of Lords (sometimes both) and then pass the legislation within the specified time – usually 40 days. One Act that specifies the need for an affirmative resolution is the Police and Criminal Evidence Act 1984 which states that any statutory instruments regarding new or revised police Codes of Practice must have an affirmative resolution procedure before they can be enforced. The other, more common method that can be taken is the negative resolution procedure, this means that the legislation is brought into force and if anyone has any objections then they have to raise it within the first 40 days, otherwise the legislation stands as is. If someone does oppose the regulations then it will be taken to the Houses of Parliament where it will be discussed and debated, if at the end the vote is against the legislation then it will be cancelled and have no more effect. The Legislative and Regulatory Reform Act 2006 Even though statutory instruments are usually made by the Government Department in charge of that area of policy they can also be made by any Minister if (by powers granted in The Legislative and Regulatory Reform Act 2006) it will ‘remove or reduce’ a burden. Where a burden is defined as being: • a financial cost • an administrative inconvenience • an obstacle to efficiency, productivity or profitability • a sanction which affects the carrying on of any lawful activity. This gives Ministers more power in that even where the enabling Act didn’t expressly allow them to make legislation they are allowed to for the benefit of society. As is mentioned in the source the Government Ministers are controlled further by this Act as they must consult all the appropriate people when making legislation and also make use of one of the three procedures; the affirmative resolution procedure, negative resolution procedure and the super-­‐affirmative resolution procedure. The former two procedures are as described previously. The super-­‐affirmative procedure requires the Minister making the legislation to have regard to ‘any representations, any resolution of either House of Parliament and any recommendations by a committee of either House who are asked to report on the draft order.’ These procedures provide limitations on the Government Ministers so that they do not override Parliament’s supremacy. Orders in Council Government departments can make delegate legislation in the form of Orders in Council which have to be approved by the Queen and the Privy Council. The Privy Council is made up of the Prime Minister and other high up people in Government; this allows them to make regulations without having to spend all the time in Parliament. Orders in Council can be made on a variety of topics such as giving legal effect to European Directives, transferring responsibility between Government Departments and bringing Acts (or parts of Acts) of Parliament into force. The Privy Council, under the Civil Contingencies Act 2004, also have the power to make legislation in times of public emergency. For an Order in Council to be made there has to be an Enabling Act giving the Privy Council and the Queen power to do so. An example of an enabling Act allowing this is the Misuse of Drugs Act 1971 which allowed an Order in Council to be made twice altering the drug class of cannabis. Bylaws Bylaws are made by local authorities; they are a form of legislation that only affects a small amount of people – a town or constituency. Bylaws are generally made around matters such as trafficking control such as parking restrictions and speed limits. However, they can also focus on areas of the law such as dogs fouling, banning drinking in public places or banning bicycles being ridden in public parks. Bylaws can also be made by public corporations and companies on matters which involve the public; this is generally regarding health and safety or trespassing. For example, before it was against the law to smoke in public places London Underground issued a bylaw banning smoking on their premises. The three methods of delegated legislation allow regulations to be made without having to go through Parliament, but there are restrictions so that law making doesn’t get out of control, the most evident restriction is The Legislative and Regulatory Reform Act 2006 which although grants ministers more power regarding what legislation they can make also limits them and sets guidelines they must follow. d) Plan: Intro – What is delegated legislation? P1 – enabling Act P2 – The Delegated Powers Scrutiny Committee P3 – Affirmative and negative resolutions P4 – Scrutiny Committee P4 -­‐ The Legislative and Regulatory Reform Act 2006 (Source A) P5 – Judicial Review P6 – Ultra vires (source B) P7 – Control by the courts Conclusion – Summarise all points and relate back to source Answer Delegated legislation is the process in which legislation is made by a body that is not Parliament. This sort of legislation comes under three types; Orders in Council (made by the Queen and Privy Council), Statutory Instruments (made by Government Ministers or Departments) and Bylaws (made by local authorities). As these are not made by an elected body such as Parliament there is a great need for restrictions and limitations so that the supremacy of Parliament is not forgotten. Enabling Act When Parliament creates an Act they produce a basic outline for the law and then delegate powers to other people so that the law can become more detailed as time goes on, the Act which establishes who can make further legislation is known as a parent/enabling Act. Parliament is able to control who make legislation and whether the person in charge of creating it must consult any other bodies before it can be brought into effect. If delegated legislation has been created by someone other than the person/people specified in the enabling Act or the correct procedures haven’t been followed then Parliament has the power to revoke any authority delegated by the enabling Act and annul the legislation that has been created. The Delegated Powers Scrutiny Committee The Delegate Powers Scrutiny Committee was established in 1993 in the House of Lords. Its aim was to make sure all legislation that was being delegated to other powers was being done so fairly and consistently. The committee researches the Bills and reports its findings back to the House of Lords before it reaches the Committee stage of the Bill. Although, the committee dedicates a lot of time to these research projects they have no power to amend or even annul the Bills. Not all Bills will be put before the Scrutiny Committee as there is no rule that they have to be, although some enabling Acts will contain it within the Act. Affirmative and Negative Resolutions If a statutory instrument is subject to an affirmative resolution it will be put before Parliament so that it can be debated and then voted on. If Parliament vote on the regulations and don’t approve the legislation is not brought into force. However, Parliament’s controls during this procedure are very limited and if they don’t approve of a statutory instrument they cannot amend it as they see fit but simply have to reject it. There are two other options Parliament has when they are voting; either to annul or withdraw the legislation. One case where the enabling Act specified the need for an affirmative resolution was the Police and Criminal Evidence Act 1984, this Act says that any legislation regarding new or revised police Codes of Practice must be put through an affirmative resolution procedure before it can be brought into force. The other option is for a statutory instrument to have a negative resolution procedure. This is the more common of the two procedures and is a less direct way of Parliament giving their approval. A piece of legislation which is subject to the negative resolution procedure is enforced straight from the moment it is created, Parliament then have 40 days to make any objections and if they don’t then the legislation will carry on having an effect. However, if there is an objection then the statutory instrument will be taken to the Houses of Parliament where it will be the subject of a debate and a vote, if they then decide that they wish to get rid of the legislation Parliament can choose to annul the statutory instrument. Once again they cannot amend or change in any way the legislation however much they would like to. The Scrutiny Committee The Scrutiny Committee, more formally known as the Joint Select Committee on Statutory Instruments, was formed in 1973. This committee looks at all statutory instruments and evaluates the points within the legislation. If they see fit they will refer the legislation back to the Houses of Parliament for further consideration, there are four main issues which the Scrutiny Committee draw attention to, the first of which is if the legislation imposes a tax or charge; only an elected body has this right. The other three points are as follows; if it appears to have retrospective affect which was not provided for by the enabling Act, if it appears to have gone beyond the powers given under the enabling Act or makes some unusual/unexpected use of those powers, or if it is unclear or defective in some way. This Committee follows the recurring theme surrounding the controls on delegated legislation and is unable to make any adjustments to the statutory instruments; it can only refer topics back to the houses of Parliament. The Legislative and Regulatory Reform Act 2006 As can be seen in Source A, The Legislative and Regulatory Reform Act 2006 imposes a number of regulations surrounding delegated legislation, the first of which sets out the people who must be consulted by the minister making the statutory instrument. The source also makes note of the three procedures which must be followed before the legislation can have full effect, and although, this means that the legislation is laid before Parliament for them to review, Parliament are left with very little they can do as they are unable to change any legislation presented to them; they can only annul, withdraw or approve of it. As mentioned earlier the first two procedures are very limited in what power/control they allow Parliament, however, the super-­‐affirmative resolution procedure allows Parliament much more control as the minister creating the legislation is forced to listen to virtually any relevant comments, so although parliament cannot physically change the legislation they can suggest amendments within this procedure which the Minister is generally advised to follow. Judicial Review When a piece of delegated legislation is subject to a judicial review the courts will research the legislation and determine whether or not it was made lawfully, that means that the person who created it followed all the correct procedures and has consulted all the right people. However, this procedure can only be carried out if a claim is brought to light regarding the legislation and therefore it is a very unreliable control as not many people are aware of what powers they have regarding questioning the validity of legislation. One example where an individual claim uncovered unlawful legislation was the case of R v Home Secretary, ex parte Fire Brigades Union (1995); it was established that the Home Secretary had made changes to the Criminal Injuries Compensation Scheme that were beyond the powers given to him in the enabling Act – the Criminal Justice Act 1988. Ultra Vires The courts can challenge delegated legislation if they believe it to be ultra vires, this is Latin and means ‘beyond the powers’, so if the courts believe that a piece of delegated legislation has been created beyond the powers granted in the enabling Act they can challenge it and potentially have it made null and void. The courts are told to presume that delegated legislation, unless the enabling Act expressly allows it, cannot be unreasonable, cannot levy taxes and cannot allow sub-­‐delegation. An example of an unreasonable piece of delegated legislation can be seen in Strictland v Hayes Borough Council 1896; the legislation stated that it was against the law to sing or recite any obscene song or ballad, or use obscene language in general. This was said to be an unreasonable piece of legislation as it covered both public and private acts, therefore the courts deemed that it was ultra vires and should not be enforced. The courts are also able to say a piece of legislation is ultra vires if the person who made it failed to follow all the right procedures. This can be seen in the case of Aylesbury Mushroom where the Minister of Labour failed to consult the Mushroom Growers Association which made up about 85% of all mushroom growers, because of this he had failed to comply with The Legislative and Regulatory Reform Act 2006, as a result the legislation he tried to impose no longer had any effect on mushroom growers, although the legislation still affected all other parties specified in the order as with those bodies he had consulted ‘any organisation…appearing to him to be representative of substantial numbers of employers engaging in the activity concerned’; the farmers still had to follow regulations as the Minister had consulted the National Farmers’ Union. Although, this means that there is another control on delegated legislation very few cases can actually be found ultra vires because of the extent of most enabling Acts, they cater for all situations so that there is no dispute when they are being interpreted, but his in turn means that not many pieces of delegated legislation are noticed as being ultra vires. The controls over delegated legislation although they exist have very little effect as they are so limited. Parliament is not able to change legislation, even though they are supposed to be the most supreme law making body in the English Legal System, they can only approve, annul or withdraw it. Furthermore, the Scrutiny Committee, even though they research the ins and outs of each statutory instrument cannot do anything apart from refer it back to the Houses of Parliament. Therefore it seems as though the effectiveness of the controls on delegated legislation is very miniscule when compared with the amount of legislation that is introduced each year. Bibliography The English Legal System – Jaqueline Martin AS Law – Catherine Elliott and Frances Quinn Oxford English Dictionary http://www.legislation.gov.uk/ http://lawcommission.justice.gov.uk/ http://www.henmansllp.co.uk/Judicialreview.pdf