1.2 Delegated Legislation Flashcards
What are the 3 things required to delegate legislation?
- PARENT ACT
(primary legislation) - ENABLING BODY
Government Ministers Local Ministers Privy Council Welsh Parliament - DELEGATED LEGISLATION
(secondary legislation)
What is meant by primary and secondary legislation
Primary Legislation is legislation is the main point of a law e.g speed limits on roads
Second Legislation is extra detail of primary e.g detal speedlimit for specific roads or vehicle.
What are the 3 types of delegated legislation?
- Statutory Instruments
- By-Laws
- Orders in Council
What differentiates statutory instruments from bylaws?
All SI are made by one of the 15 government departments by the Government Minister in their area of expertise.
They can apply nationally or across large regions.
SI’s often require parliamentary oversight or approval.
What are the two types of Statutory Instruments
- Ministers given power by an enabling Act to “flesh out” legislation.
E.g: Education Act 1946 (enabling Act)
Minister for Education (enabling body)
School Attendance Regulations (delegated legislation).
- Ministers can amend existing primary legislation under power given to them under the Legislative Regulatory and Reform Act 2006 to remove a “burden”.
Describe (with case law examples) by-laws.
Made by Local Councils
Can cover their own areas
responding to local needs under
powers given to them by the Local
Government Act 1972.
- Usually summary offences heard
in the Magistrates’ Court with a
punishment of a Fixed Penalty Notice. - Examples: traffic restrictions, parking
offences, banning alcohol, bicycles in
local parks, dogs on beaches. - Local Council should publicise and
consult on new by-laws through their
websites and local press. - By-Laws can also be made by
big corporations – for example,
Transport for London.
Describe (with case law examples) Orders in Council
Made by the Privy Council
- Privy Council is made up of the King, Prime Minister and senior members of the government.
Orders in Council can be made to:
◦ Give effect to European Directives;
◦ Transfer responsibility between
government departments;
◦ Bring Acts of Parliament into force;
◦ Make legislation in times of emergency under powers granted by the Civil Contingencies Act 2004
Example: fuel strikes 2001, foot and mouth crisis.
* Orders in Council can be made quickly and in times of emergency when Parliament are not sitting.
Why is it important to have controls on delegated legislation?
Delegated legislation is often made by unelected officials so it is important that there should be control over the use of the power.
This is especially true when considering that this type of legislation far outnumbers the law created annually by UK
Parliament and can have far reaching consequences.
Control over deligated legislation comes from the Courts and Paraliment
Name the 6 paralimentary controls of Deligated legislation (no description)
Enabling Act
Affirmative Resolution
Negative Resolution
Super Affirmative Resolution
Consultation
Scrutiny comitee
Describe how the three types of resolution help control delegated legislation
Affirmative Resolution: Where the Statutory Instrument will not become law unless it has been approved by Parliament.
Parliament can only approve, annul or withdraw the Instrument - cannot change details.
Negative Resolution: The Statutory Instrument will become law unless it is rejected by the UK Parliament within 40 days - most common type of SI, can be reviewed by MP’s but due to the volume of them this is rarely the case.
Super Affirmative Resolution: Used for particularly important or controversial measures. Like regular AR, UK Parliament must expressly approve it, however in SAR it is more rigorous, such as multiple rounds of approval necessary.
This is required for any Statutory
Instruments made under the Legislative and Regulatory Reform Act 2006
Ministers must consider any changes suggested by parliament, e.g amendments suggests at committee stage
What is meant by an enabling act?
Enabling Act’s are given by paraliment and set the boundaries within which the delegated legislation is to be made
How does the scruity comitee help paraliment control deligated legislation?
-also known as the Joint Select Committee on Statutory Instruments.
The review is a technical one, and it has no power to actually change regulations however, they will draw Parliament’s attention to points that need further attention.
E.g if the law:
- imposes a tax or charge (only elected bodies have this right)
- appears to have gone beyond the powers given by the enabling Act
- makes unusual or unexpected use of powers
- is unclear or defective in some way
How does ‘consultation’ help parliament control delegated legislation?
This is where the Enabling Body has to consult with interested parties who will be affected by the legislation to see their views and opinions ensuring the new law made will be relevant.
What are the three Judicial controls on deligated legislation and why are these used?
Judicial controls are used as once the law has already been passed, the opportunity for Parliamentary Controls is limited.
The only avenue available for claimants who feel they have been subjected to a law that is ultra vires is to apply for a judicial review of the law in the High Court.
The three types of judicial controls are:
Procedural Ultra Vires
Substantive Ultra Vires
Unreasonableness
How does ‘Procedural Ultra Vires’ help the courts control deligated legislation with case law
This is where the procedures laid down in the enabling Act for making the Statutory Instrument have not been followed.
Aylesbury Mushroom case – interested parties were not consulted before making the law
How does ‘Substansive Ultra Vires’ help the courts control deligated legislation
This is where the delegated legislation does follow procedure but goes beyond what Parliament intended.
R v Secretary of State for Education – the Minister went beyond the powers given by the Education Act by changing the pay for teachers.
How does ‘Unreasonableness’ help the courts control deligated legislation
This is where the Regulations made are unreasonable.
Strickland v Hayes Borough Council – a by-law restricting singing of obscene songs in private was held to be unreasonable.
Name as many advantages as you can of deligated legislation
Insufficient Parliamentary Time
Parliament does not have time to debate all the laws it needs to.
Speed
Delegated legislation can be made in times of emergency or to quickly update primary legislation. Full parliamentary debate is not needed.
Knowledge
Technicality of the subject matter
Statutory instruments are made by government departments who have expertise in the relevant subject matter.
Need for local knowledge Local by-laws are better made by a local authority which has knowledge of the needs of the locality.
Flexibility
They can be made at any time whereas Acts have to be timetabled. In addition, statutes require cumbersome procedures for introducing them and they can only be revoked or amended by another statute. Delegated legislation however can be introduced very quickly as and when it is needed and can also be revoked quickly or
amended easily if it proves problematic.
Future Needs
Delegated legislation can be amended or revoked relatively easily, so that the law can be kept up to date and so that the law can meet future needs that arise such as areas concerning welfare benefits, illustrating a great deal of flexibility in the system. Otherwise statutes can only be amended or revoked by another complicated and time
Name as many disadvantages of delegated legislation as you can
Sub-delegation
Delegated legislation is sometimes made by people other than those who were given the original power to do so.
Lack of Democratic Involvement
Delegated legislation is normally made by civil servants rather than the elected politician. There has been increasing concern that delegated legislation was being used to implement important policies.
Overuse
Critics argue that there is too much delegated legislation. The large volume also gives rise to criticism since it makes it difficult to discover what the present law is. Much delegated legislation is made in private in contrast to the public debate of Parliament.
Lack of Control
Despite the list of controls over delegated legislation, effective supervision by Parliament and courts is difficult.
Affirmative resolution is a stronger control than negative resolution but not all enabling Acts require affirmative resolution. Control by the courts only happens once the delegated legislation has been passed and has started to affect people. It also requires a challenge to be made.
Interpretation
Finally, delegated legislation shares with Acts of Parliament the same problem of obscure wording that can lead to difficulty in understanding the law.
