👀 Flashcards
What is the enabling act?
Parliament must make an act of parliament that gives away its law making powers
Examples of enabling acts
- Access to justice act 1999 ( lord chancellor can alter aspects of legal funding schemes)
- Disability discrimination act 1995
Enabling act must pass through parliamentary process which has 6 steps
- Green/white paper
- 1st reading
- 2nd reading
- Committee stage
- Referral stage
- 3rd reading
What are the three types of delegated legislation?
- Orders in council
- By laws
- Statutory instruments
Key points about orders in council
- Queen and privy council have authority under the Emergency powers act 1920
- Hardly ever used
- Only happens in emergency/ quick decision
- Parliament can alter the law later on
Key points about by laws
- Local councils can make law
- Used for local issues (e.g. Fine for litter)
- only valid within the specific area
- Also used by public corporations ( e.g. Airports)
Key points about statutory instruments
- Most common form of delegated legislation
- Around 3000 per year
- Ministers and government departments have authority to make regulations
In 1998 the government of Wales act established the…
Welsh assembly (can create law to govern Wales)
How many areas of law did parliament delegate to Wales?
20 ( with 20 being still governed by parliament)
Up until 2010 the Welsh government had to…
Seek approval from parliament for all laws it passed
What was the result of the 2011 referendum?
Government were given more power and didn’t have to seek permission from parliament before passing laws
Why is the human rights act controversial with delegated legislation?
Can make amendments to primary legislation that seem incompatible with human rights
What is the Henry viii clause?
Parliament can delegate powers to enable ministers to make primary legislation compatible with the convention
Name the 5 controls by Parliament
- Enabling act
- Delegated powers scrutiny committee (1993)
- Affirmative resolutions
- Negative resolutions
- Scrutiny committee (parliamentary committee 1973)
Key points on enabling act
- Gives guidelines on how much power it will have
- If enabling act is removed then so is the power to create delegated legislation
Key points on delegated powers scrutiny committee
- Analyses legislation to make sure they stay within guidelines
- If something goes beyond its power they report it to parliament
- Has no power to amend proposed law
Key points on affirmative resolutions
- Some enabling acts require the statutory instrument to be sent for approval to parliament in the form of affirmative resolutions (e.g. Tax)
- It ensures statutory instruments don’t become law unless approved by parliament
Key points on negative resolutions
- States a statutory instrument will become law unless rejected by parliament within 40 days
- Only some enabling acts require this
Key points on scrutiny committee
- Reviews all statutory instruments
- Will draw attention of both Houses of Parliament to points that need consideration (technical review)
- Deals with tax, retrospective effect, goes beyond powers, unclear/defective
- Can only report findings, has no power to alter
- Hansard society (1992) found some critical findings were ignored by ministers
Name the 3 controls by courts
- Unreasonable ultra vires
- Substantive ultra vires
- Procedural ultra vires
Ultra vires = beyond its power
Void if conflicts with eu law
What are the 2 situations for questioning the validity of delegated legislation?
- As part of a civil claim
- Judicial review ( case specifically brought to court to challenge the law)
Any delegated legislation found to be ultra vires is void and not effective ( r v Home Secretary 1995)
What is unreasonable ultra vires?
Making unreasonable regulations ( Strictland v Hayes Borough Council 1896- prohibited signing of obscene songs and language, too widely drawn)
What is substantive ultra vires?
Where the measure under review goes beyond its powers
What is procedural ultra vires?
Need to give you a chance to complain, gone beyond powers if they don’t (Aylesbury mushroom case 1972- didn’t consult mushroom growers association)
6 argument for delegated legislation
- Insufficient parliamentary time
- Speed
- Technicality of the subject matter
- Need for local knowledge
- Flexibility
- Future needs
5 reasons against delegated legislation
- Sub delegation
- Lack of democratic involvement
- Overuse
- Lack of control
- Interpretation
