English Legal System

Secondary Legislation

Aims

• The aims of this lecture are:

1. To expand on your knowledge of the concept of secondary legislation;

2. To examine the different forms of secondary legislation and the powers by which these are made;

3. To consider Parliament’s role in the scrutiny of secondary legislation;

4. To analyse the reasons for the use of secondary legislation;

5. To consider the dangers which the use of secondary legislation may pose.

Outcomes

• By the end of this lecture you should be able to:

1. Identify the main forms of secondary legislation and the powers under which they are created;

2. Critically consider the role that Parliament plays in scrutinising secondary legislation;

3. Critically consider the arguments for and against the use of secondary legislation as a law-making process.

Introduction

• Not all legislation is passed by Parliament – only statutes or Acts of Parliament which are called primary legislation

• Arguably, the sheer complexity of modern government would prevent all legislation from being passed through the Houses of Parliament

• Therefore, secondary legislation exists to bridge the gap and fill in the detail of the primary legislation

Secondary Legislation

What is secondary legislation?

2 ways of answering this question

1) By an abstract definition of the concept of secondary legislation

2) By citing specific examples of secondary legislation

The abstract definition

• Legislation made by some body or authority outside of Parliament using powers conferred on them by Parliament in a specific Act of Parliament

Couple of things to notice:

1) Body or authority2) Powers conferred on them by an Act of

Parliament – administrative law

Specific examples

1) Statutory instruments

2) Byelaws

3) Orders in Council

4) Legislation passed using the Parliament Acts Procedure 1911 & 1949?

Statutory Instruments

• These are made under the Statutory Instruments Act 1946

s.1 of the act defines these as:

‘…the power to make, confirm or approve orders, rules, regulations or other subordinate legislation … [then the] … document by which that power is exercised shall be known as a “statutory instrument”…’

If there is a power to make statutory instruments this is conferred in the specific Act of Parliament which delegates that power – see for example s.4 (1) of the Coroners Act 1988

Coroners Act 1988 s.4 (1)

• 4 (1) ‘The Secretary of State may by order divide, amalgamate, or otherwise alter the coroners districts for the time being existing in a metropolitan county or Greater London: and before making such order, the Secretary of State shall consult the councils and coroners appearing to him to be affected by the order and such other persons as he thinks appropriate’

(6) ‘The power to make orders under this section shall be exercisable under statutory instrument’

Orders in Council

• These are made by the Queen, who constitutionally must act on the advice of her ministers, as an order in the Privy Council

• The Privy Council is a body which originally counselled the King or Queen of the time, and historically was quite small

• Today it is composed of senior politicians, statesmen, high ranking military officers and clergy

Orders in Council

• Action can taken using an Order in Council where there are requirements that it should have the legitimacy of cross-party support in times of national emergency

• An example of this would be the emergency action taken following the fuel crisis in the United Kingdom in 2000

• For a further example see s.30 (1) of the Civil Aviation Act 1980

• Orders in Council can also be used to make emergency provisions in territories subject to the English Crown, but not the sovereignty of Parliament as such, for example the Channel Islands

Bye Laws

• The best example of bye-laws are those made by the local government

• The powers of local government are specified in the Local Government Act 1972, s235. This provides that a district council can make bye laws for the ‘good government of the whole or any part of the district and for the prevention and suppression of nuisance therein’

• Other bodies also have the power to make bye laws, and these include the Strategic Rail Authority under the Transport Act 2000

Rules

• Rules having the force of law can also be made by some bodies

• An example of this would be the Civil Procedure Rules and their Practice Directions which are issued by the Court of Appeal – will look at these rules in more detail in lectures on Civil Litigation

• The power for making these rules derive from the Civil Procedure Act 1997

Reasons for secondary legislation

The main reasons for using secondary legislation to pass law, may be summarised as follows:

• Saves parliamentary time

• Facilitates the appropriate handling of complex subject matter

• Provides for flexibility

• Allows for appropriate action to be taken in an emergency

• To Implement EU legislation

• To bring legislation into effect

Saving Parliamentary Time

• Parliament has a number of roles within the constitution

• It is a legislative body whose purpose is to deliberate on the need for and quality of laws which the government wishes to pass

• It is also a debating chamber which considers issues of major public importance, such as the justification for taking the United Kingdom to war

• The MPs have to represent their constituencies, by, for example, asking questions of ministers

Complex subject matter• In the modern state there are many complex areas

which government has to deal

• This is time-consuming

• It also requires consultation with experts in the area

• If you look at the subject matter of most secondary legislation it deals with very detailed provisions. For example The Ammonium Nitrate Materials (High Nitrogen Content) Safety Regulations 2003

Provides for flexibility

• Think about all the subjects which the State now has to deal with

• Secondary legislation allows for the detail of the provisions to be filled in at a later date

• It also enables account to be taken of local conditions or variations over time

Example of flexibility

• The Clean Air Act 1993

s.18 (1) ‘A local authority may by order declare the whole or any part of the district of the authority to be a smoke control area; and any order made under this section is referred to in this Act as a ‘smoke control order’.’

Allowing the local authority to take account of local conditions in making an order

Action to be taken in an emergency

• In emergency situations such as a war, or national crisis, it would be difficult to consult Parliament and get them to pass an Act authorising action which is required

• The parent or enabling statute can allow for powers to be given to a body outside Parliament and exercised swiftly

• An example of this would be The Food (Peanuts from China) (Emergency Control) (England) Regulations 2002

• Note: this provision has now been revoked

To implement EC or EU legislation

• EC or EU law is an increasingly important source of law in the United Kingdom

• We saw in the lecture on sources of law that it is itself divided into primary and secondary legislation

• Its secondary legislation needs to be implemented in the United Kingdom, the EC Directives

• Examples of the implementation of directives through secondary legislation

The Health and Safety (Display Screen Equipment) Regulations were passed in order to give effect to EU Directive 90/270

To bring legislation into effect

• Secondary legislation which achieves this end is known as ‘Commencement Orders’

• We saw in the lecture on reading statutes, that the commencement section may only specify that the Act is to be brought into effect at a later date

• This is to give time for the implementation of the law and changes by those affected

• This is achieved through the use of statutory instruments

• An example of this would be The Countryside and Rights of Way (Commencement no.3) Order 2003

Procedure for passing secondary legislation

• Drafted by the relevant government department

• Signed by the Secretary of State/Minister authorised in the parent statute

• Affirmative laying procedure

• Negative laying procedure

Problems with secondary legislation

The problems of secondary legislation may be summarised as follows:

• Governmental scrutiny – not necessarily debated in parliament

• Henry VIII clauses

• Is this a retreat into tyranny or a necessary of governing a modern state?

• Limits on ministerial power – judicial review

Henry VIII Clauses

• Named after Henry VIII who reigned in England from 1509-1547

• Described by one judge as an affront to the good name of the sovereign as he reigned a hundred years before the constitutional settlement of the seventeenth century recognising the supremacy of Parliament

• They allow a government minister to re-write the provisions in the primary statute

Examples of Henry VIII clauses

• The Human Rights Act 1998 provides in s.10(2) that:

‘If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments as he considers necessary to remove the incompatibility.’

And further in subsection 3:

‘…he may make such amendments to the primary legislation as he considers necessary.’

Parliament’s role as overseer• Parliament by virtue of its sovereignty may specify in the Act

certain requirements for its scrutiny before it is passed in to law

• What is known as “the enabling act” will specify the provisions in relation to the particular statute

• It is important to consult the text of the Act in question

• Task – find the Student (Loans) Act 1990. What are the provisions in that Act relating to delegated powers?

• Note: the 1990 Act has now been superseded but the original text is still available on the HMSO website

Procedure for affirmative laying

• This requires Parliament expressly to approve the legislation in question

• It therefore involves finding Parliamentary time to do so

• You may also question whether it is effective in scrutinising the legislation in question because

i) The government has a majority in the Commons;ii) The process is usually reserved for late in the day after

the main business of the house has been dealt with.

Examples of the affirmative procedure

• Under the Agricultural Holdings Act 1986 s.91 (1):

• ‘The minister may after consultation with such bodies of persons as appear to him to represent the interests of landlords and tenants of agricultural holdings by order vary the provisions … to this Act’

• S.94 (4) provides:

• ‘An order under this Act shall be of no effect unless approved by a resolution of each House of Parliament’

Procedure for the negative laying• Under this procedure Parliament must pass a motion to annul the

instrument within 40 days otherwise it will be brought into force

• As has already been stated, because the government has a majority, as least in the House of Commons, this is a very difficult motion to pass

• Through the whip system the government can exert further influence by relaying the motion and ensuring that its MPs vote in favour

• A piece of secondary legislation subject to this proposal will be law until Parliament considers the matter and will not be repealed retrospectively

Publication of Secondary Legislation

• Not all secondary legislation is required to be published

• There is a general duty in relation to statutory instruments in s.2 of the Statutory Instruments Act 1946 which provides as follows:

‘Immediately after the making of any statutory instrument, it shall be sent to the King’s printer…copies thereof shall as soon as possible be printed and sold…’

The Statutory Instruments Regulations 1947

• The general duty described above is subject to the exemptions contained in this legislation

• These are:

1. Local instruments;2. Temporary instruments;3. Bulky Schedules;4. When it is not in the public interest to publish the

instrument before it comes into effect.

Summary of lecture• You should now be able to:

1. Describe the main forms of secondary legislation and the relationship between them and the parent statute;

2. Critically assess the advantages and disadvantages of using secondary legislation to make law;

3. Explain what is meant by a Henry VIII clause and why these may pose particular difficulties in a democratic State;

4. Describe the affirmative and negative laying procedures before Parliament and consider whether these are sufficient in a modern democratic State;

5. Identify the difficulties with secondary legislation in relation to its publication and accessibility.

Further reading & follow up work

• Here the best starting point is to become familiar with the secondary legislation which is published

• Go to the HMSO website at www.hmso.gov.uk

• What provisions can you find there which have been enacted using secondary legislation?

• See also Slapper, G. and Kelly, D., The English Legal System (London: Cavendish Press, 2004, 7th edition), chapter 2 ‘Sources of Law’, relating specifically to statutory instruments