Chapter Two - Definitions

Question

Chapter 2: (A) DEFINITIONS

Answer

Please explain the meaning of the following terms, providing examples wherever appropriate.

(1) Government Ministers

Government Ministers are appointed by the Prime Minister to take responsibility for certain areas of policy. Senior Government Ministers, and particularly those with the title of Secretary of State, may have law-making powers delegated to them by enabling provisions in Acts of Parliament. Such delegated law-making will take the form of Regulations.

(2) Emergency Powers Act 1920

This Act gives power to the Government, acting through the Privy Council and on behalf of the Queen, to make Orders-in-Council to deal with periods of emergency. Emergencies envisaged by the Act include threats to the supply and distribution of food, water and fuel. Such powers can be exercised even when Parliament is in recess.

(3) Ultra vires

Ultra vires describes a situation in which a public body exceeds its statutory powers as laid down in primary or delegated legislation – the term ultra vires translating as ‘beyond the powers’ – and can therefore be held to account by an aggrieved person in an action for judicial review. There are two grounds of ultra vires: procedural and substantive.

(4) The Joint Committee on Statutory Instruments

This body, also known as the Scrutiny Committee and made up of MPs and Peers, reviews delegated legislation in the form of statutory instruments and reports back to Parliament where it believes points arising from the review should be considered. The Scrutiny Committee cannot amend the content of statutory instruments.

(5) Enabling Act

An enabling Act, also known as a ‘parent Act’, is one that contains provisions that enable bodies other than Parliament to make laws in the form of delegated legislation. For example, environmental legislation gives a great deal of power to the Secretary of State for Environment, Transport and the Regions to exercise detailed delegated powers in respect of specific issues, such as hedgerows, genetically modified organisms, etc. (See further, AS Level Law p 30.)

(6) Judicial Review

This term describes the form of legal claim in the Administrative Court (part of the Divisional Court: Queen’s Bench Division) where an aggrieved person with sufficient legal standing to bring a case challenges the exercise of power by a public body or authority. In the context of delegated legislation, a person affected, say, by a local authority’s exercise of its bylaws might seek to challenge the exercise of such powers on the basis that it is unreasonable or exceeds the powers given by statute.

(7) Statutory Instruments Act 1946

This Act provides guidelines and rules relating to delegated legislation issued as statutory instruments (Orders and Regulations). The Act also contains provisions to the effect that statutory instruments should be published as soon as they are made, thus providing a defence to a person in breach of rules that they had not by that point been published.

(8) Sub-delegation

This is a danger associated with delegated legislation, since once power has been delegated it is already distant from Parliament; should further sub-delegation occur – such as to a separate body that is going to enforce the law - then power becomes too remote from the sovereign body. Thus there is less accountability for law-making power.

(9) Commencement Orders

Such Orders, a very common form of Order-in-Council, are used to bring an Act of Parliament, or parts of it, into effect following the Royal Assent. These Orders are necessary because, in practice, Acts are often brought into effect part by part rather than all at once. Henry VIII clauses enable delegated legislation to be used to amend aspects of primary legislation. A famous example is contained in the Human Rights Act 1998: it allows for delegated legislation to be used to make swift amendments to primary legislation where an Act has been found to be ‘incompatible’ with European Convention on Human Rights obligations.