Secondary (delegated) legislation

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Ambrose District Council, relying on powers in the Clean Environment Act 2022, passed a byelaw imposing strict waste disposal fines in local parks. Under the parent statute, any local byelaw must undergo a formal public consultation period and subsequent ministerial approval. Residents complained that the council never opened a public consultation phase. Nevertheless, the byelaw came into force within two weeks of its introduction. Mr. Stone, who was fined under the new rules, seeks to challenge the byelaw in court.


Which of the following grounds of judicial review would most likely succeed in Mr. Stone’s legal challenge?

Introduction

Secondary legislation, also known as delegated legislation, is a core aspect of the United Kingdom's legal system. It refers to laws made by an individual or body other than Parliament, under authority granted by an Act of Parliament. This mechanism allows for the detailed implementation of primary legislation, giving government ministers and other authorized bodies the ability to make regulations, orders, and rules that carry legal force. Key principles of secondary legislation include the doctrine of parliamentary sovereignty, the need for efficient law-making, and compliance with statutory limits defined by enabling Acts. Understanding the forms, processes, and legal parameters of secondary legislation is important for knowing its role within the constitutional framework and its implications for legal practice.

Constitutional Foundations and Legal Framework

The Doctrine of Parliamentary Sovereignty and Delegated Powers

Secondary legislation operates under the principle of parliamentary sovereignty, a fundamental element of the UK constitution. While Parliament holds supreme legislative authority, it can delegate law-making powers to government ministers or other bodies through enabling Acts. This delegation streamlines governance by allowing detailed and technical provisions to be made without requiring a new Act of Parliament for every adjustment. The delegation of powers must, however, remain within the boundaries established by the enabling Act to maintain the balance between effective administration and parliamentary control.

Legal Basis for Secondary Legislation

The authority to create secondary legislation is derived from specific provisions within an enabling or parent Act. These Acts outline the scope of the delegated powers, including any limitations and procedural requirements. It is important that secondary legislation stays within these parameters; otherwise, it may be deemed ultra vires, meaning beyond the powers granted, and thus invalid. This legal framework ensures that the delegation of legislative power is controlled and accountable.

Forms of Secondary Legislation

Secondary legislation appears in several forms, each serving different functions within the legal system.

Statutory Instruments (SIs)

Statutory Instruments are the most common type of secondary legislation. They allow ministers to add detailed provisions to an existing Act of Parliament. Think of SIs as the detailed instructions that put the overall plan into action. For example, regulations under the Data Protection Act 2018 specify how data protection principles are to be applied in practice.

Orders in Council

Orders in Council are laws made by the Queen on the advice of the Privy Council, often used in times of emergency or for matters requiring swift action without the need for a full parliamentary process. An example is the implementation of United Nations sanctions or responding to urgent public health crises.

Byelaws

Byelaws are made by local authorities or certain public corporations and apply to specific regions or organizations. They address local issues such as parking regulations, park usage, or public health matters. For instance, a city council may create byelaws to prohibit drinking alcohol in designated public areas to address local concerns.

Other Forms

Other forms of secondary legislation include:

  • Codes of Practice: Non-binding guidelines that outline best practices in certain fields, such as the Codes of Practice under the Police and Criminal Evidence Act 1984, which guide police conduct.
  • Directions and Circulars: Instructions issued by government departments to public bodies, providing details on implementing certain policies.

Creation and Oversight of Secondary Legislation

The Legislative Process for Secondary Legislation

The process of creating secondary legislation typically involves several steps:

  1. Drafting: The relevant government department prepares the draft legislation, often consulting with interested parties to gather input and specialist knowledge.

  2. Laying Before Parliament: The draft is presented to Parliament. Depending on the procedure specified in the enabling Act, it may require approval before coming into force.

  3. Parliamentary Scrutiny: Parliament examines the legislation to ensure it aligns with the powers granted and serves the intended purpose.

You might wonder, how does Parliament keep track of all these regulations? That's where the scrutiny committees come into play.

Parliamentary Procedures

The scrutiny of secondary legislation by Parliament can follow different procedures, primarily the affirmative resolution procedure and the negative resolution procedure.

Affirmative Resolution Procedure

Under this procedure, the statutory instrument must be explicitly approved by both the House of Commons and the House of Lords before it can become law. This method is often used for legislation of significant importance or sensitivity.

Example: The Human Fertilisation and Embryology (Mitochondrial Donation) Regulations 2015 required affirmative approval due to the ethical considerations involved.

Negative Resolution Procedure

In this case, the statutory instrument becomes law without debate unless it is annulled by either House within a specified period, usually 40 days. This procedure is used for less controversial or technical matters.

Example: Regulations adjusting fees or updating schedules may follow the negative resolution procedure.

Scrutiny Committees

Several committees assist in examining secondary legislation:

  • Joint Committee on Statutory Instruments (JCSI): Reviews technical aspects, ensuring legal and drafting correctness.

  • Secondary Legislation Scrutiny Committee (SLSC): Evaluates the policy implications and whether the legislation effectively implements the enabling Act's intent.

These committees act as a safety net, catching errors and highlighting issues for Parliament's attention.

Legal Challenges and Judicial Review

Secondary legislation can be challenged in the courts through the process of judicial review. This means that individuals or organizations can ask a court to assess whether the legislation is lawful.

Challenging secondary legislation is similar to appealing a referee's decision in a sports game; there must be grounds to question whether the rules have been applied correctly.

Grounds for Judicial Review

Legal challenges may arise on several grounds:

  1. Ultra Vires (Beyond Powers): If the legislation goes beyond what is authorized by the enabling Act.

  2. Procedural Impropriety: If the correct procedures were not followed in making the legislation.

  3. Irrationality: If the legislation is unreasonable in the legal sense, sometimes called Wednesbury unreasonableness.

  4. Incompatibility with Human Rights: If the legislation breaches rights protected under the Human Rights Act 1998.

Case Example: R (Public Law Project) v Lord Chancellor [2016]

In this case, the Supreme Court considered whether a statutory instrument introducing a residence test for legal aid was lawful. The Court found that the Lord Chancellor had exceeded his powers under the enabling Act, rendering the secondary legislation invalid. This case illustrates how the courts oversee the limits of delegated authority, ensuring that secondary legislation remains within legal boundaries.

Impact of Brexit on Secondary Legislation

The UK's departure from the European Union significantly affected secondary legislation.

European Union (Withdrawal) Act 2018

This Act converted existing EU law into UK law, referred to as 'retained EU law'. To ensure the legal system functioned correctly after Brexit, the government was granted powers to make extensive secondary legislation to amend and alter this body of law.

Brexit-related Statutory Instruments

Hundreds of statutory instruments were made to address issues arising from Brexit, covering areas like customs, immigration, and regulatory standards. These instruments ensured continuity and legal certainty during the transition.

'Henry VIII' Powers

Some enabling Acts granted so-called 'Henry VIII powers', allowing ministers to amend or repeal primary legislation through secondary legislation. This raised concerns about executive overreach and the potential undermining of parliamentary scrutiny.

Conclusion

Understanding the complex relationship between parliamentary sovereignty and the delegation of legislative powers is important for comprehending the function of secondary legislation within the UK legal system. The balance between efficient governance and the requirement for parliamentary oversight is expressed in the processes governing the creation and scrutiny of statutory instruments, orders in council, and byelaws. The interaction of these forms with the principles of administrative law, such as the doctrine of ultra vires and judicial review procedures, illustrates the checks and balances present in the system. For instance, cases like R (Public Law Project) v Lord Chancellor demonstrate how the judiciary enforces the limits of delegated authority. Moreover, the post-Brexit legal environment emphasizes the role of secondary legislation, with extensive use of statutory instruments to modify retained EU law. Acquiring a thorough understanding of these concepts is critical for analyzing how secondary legislation operates within the constitutional framework, ensuring that laws are made within the scope of authority granted by Parliament, and that there are mechanisms in place for accountability and legal challenge where necessary.

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