Orders in council and bylaws are two forms of delegated legislation. Explain what is meant by orders in council and bylaws.

Authority has been granted by the Emergency Powers Act 1920 and the Civil Contingencies Act 2004 for legislation to be introduced by an Order in Council. Bylaws are rules made by a local authority to regulate its own affairs.

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With regard to Orders in Council, authority has been granted by the Emergency Powers Act 1920 and the Civil Contingencies Act 2004 for legislation to be introduced by an Order in Council when it is not possible or appropriate for legislation to be made by Parliament.

 

Acts of Parliament or statutes are a major source of legislation in England and Wales. Such acts are considered to be primary legislation. Draft legislation is introduced in the form of a bill which then goes through a series of stages commencing with the First Reading. These stages or processes are conducted in both Houses of Parliament and once the final debate has taken place and, provided the Bill is approved, it is then passed to the Queen for her Royal Assent. It is unlikely for the Bill not to be approved once it has reached the final debate stage.

 

There are very good reasons for subjecting proposed legislation to such public debate and scrutiny, not least being the fact that it recognises the sovereignty of Parliament to legislate. It is also a fundamental part of our democratic system.

 

However there are times when it is simply not possible to legislate in this way. For example there are times, such as during the summer recess, when Parliament is not sitting and

therefore unable to conduct formal business. Similarly at times of emergency, the elaborate process through which draft legislation is submitted would not be appropriate. In these circumstances authority has been granted by the Emergency Powers Act 1920 and the Civil Contingencies Act 2004 for legislation to be introduced by an Order in Council. This power is to be exercised in times of emergency and when Parliament is not sitting. There is also authority to give effect to EU proposals under the European Communities Act 1972.

 

Under this power, draft legislation is drafted by a government department and approved by the Privy Council and signed by the Queen. It could be argued that Orders in Council are

undemocratic and to a large extent they are in that the power rests with a small group and is far removed from the close scrutiny and debate reserved for legislation passing through

Parliament.

 

However it could be argued that such emergency legislation is drafted by government departments so the legislation is likely to achieve what it set out to do and is therefore effective. It could also be said that as the members of the Privy Council are made up of the Prime Minister and leading members of the government there is accountability as those individuals are ultimately answerable to Parliament.

 

This form of delegated legislation effectively allows the government to introduce legislation without the approval of Parliament. Orders in Council will state when and where they were made. This would usually be Buckingham Palace as it is where Privy Council meetings would generally be held. Examples of Orders in Council and their use include the giving effect to European Directives. Directives are binding upon the national country with regard to the result to be achieved but it is left to the individual member state to implement the directive within a set time-scale.

 

Orders in Council have been used in times of emergency such as the fuel crisis in September 2000 when the government controlled fuel supplies. Another example would be at times of war as was the case with the Gulf war and subsequent invasion of Iraq.

 

Occasionally Orders in Council will be used to introduce other laws of general application. This was the case with the Misuse of Drugs Act 1971 and enables the Home Secretary to amend the lists of drugs within each class by order without having to pass an act through both Houses of Parliament.

 

Orders in Council are Orders that have been approved at a meeting of the Privy Council personally by The Queen. Orders of Council are Orders which do not require personal approval by The Queen, but which can be made by “The Lords of the Privy Council” .

 

Turning to the matter of bylaws these are also a form of delegated or secondary legislation. Acts of Parliament or statutes are considered to be primary legislation. In the case of primary legislation, Parliament in the shape of the House of Commons, House of Lords and the Monarch scrutinises and passes the legislation provided it is supported by the majority. Parliament does not have the time to introduce all forms of control and legislative measures and this includes bylaws.

 

The power to make bylaws has therefore been delegated to other appropriate bodies under the control of Parliament. These bodies include local authorities to cover local matters within their administrative area and area of responsibility. This power has also been given to public corporations and certain companies in order to better control and regulate matters within their jurisdiction which involve the public. Such organisations include public utility and public transport companies and airport authorities.

 

Matters which affect the country as a whole are usually introduced either by way of statute or statutory instrument following the passing of an enabling Act. Matters of only local concern ought to be the subject matter of bylaws. Examples of local issues might include parking restrictions, dog fouling of footpaths or regulations to do with parks and recreation grounds.

 

Examples of bylaws introduced by corporations include regulations and restrictions placed on people who use their facilities and services. The London Underground has introduced a non smoking bylaw covering the London underground network. Airport authorities have introduced bylaws covering such activities as parking and security.

 

The appropriate government department will provide guidance about the reasonableness and appropriateness of bylaws to individual local authorities whilst the bylaw is in draft form. Local authorities are given general authority to make bylaws under the Local Government Acts and other specific legislation such as the Public Health Acts for the benefit of their constituents and the public generally. Bylaws will only come into force provided they have been properly published in newspapers circulating in the area prior to when they come into force.

 

Enacting bylaws is one way that councillors can champion the concerns of local people and tackle problems in their area. At present the Secretary of State for Communities and Local government confirms all local authority bylaws.

 

Orders in Council 5th March 2014

The Misuse of Drugs Act 1971 (Ketamine etc.)

Privy Council Office – independent.gov.uk



(Word Count 1048)

This essay describes and illustrates Orders in Council and Bylaws. It includes references to the following matters:

  • authority under the Emergency Powers Act 1920 and the Civil Contingencies Act 2004;

  • the sovereignty of Parliament;

  • times of emergency and when Parliament is not sitting;

  • the Privy Council and the Queen;

  • examples of Orders in Council.

  • delegated or secondary legislation;

  • lack of Parliamentary time;

  • matters of local concern;

  • bodies to whom authority is granted;

  • examples of activities covered by bylaws.