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
