7 - Law making : Delegated legislation Flashcards
What is delegated legislation?
secondary legislation made by someone other than parliament, with parliaments permission
Parent acts/enabling acts
The enabling Act creates the framework for the law and then delegates power to others to add the detail
Orders in council
Made by the privy council, who are the prime minister and other leading members, without needing the whole of parliament to make a decision
Reason for orders in council
Can respond quickly to an emergency situation
Example of an order in council
Misuse of Drugs Act 1971 altered in 2003 to make Cannabis a class C drug, later repealed and went back to a class B drug
Statutory instruments
Rules and regulations made by Government Ministers within their Department (there are 15 of them)
Minister of Transport will deal with road traffic regulations
Reason for the privy council
Parliament couldn’t cope with the amount and complexity so is better for experts to have responsibility in different areas
How many statutory instruments passed a year
3000
By laws
By Laws can also be made by public corporations or councils and certain companies which involve the public
British Airports and Railways – enforce public behaviour in their area
County councils may may laws that cover the entire county
Reason for by laws
Parliament has neither time or local knowledge to make regulations on a local scale
Examples of by-laws
No parking
no ball games
why must DL be tightly controlled
DL can be made by un-elected bodies
How does parliament control DL using the enabling act
It details:
Which Government Ministers can make regulations
States the type of law
Whether they can be made for the whole county or just certain areas
How many parliament tackle controverisal areas of DL
Parliament may insist that the draft legislation is scrutinized and voted on before coming into force
this is done by including an affirmative resolution order in the parent act
affirmative resolution
effects a small number of statutory instruments.
Means that they will not become law unless specifically approved by Parliament.
What are the downsides of affirmative action?
Disadvantage – Parliament cannot amend anything they can only, approve, annul or withdraw
counter intuitive as still need guidance by parliament
Negative resolution order
Effects most statutory instruments
Means that statutory instruments will become law unless rejected by Parliament within 40 days
The delegates powers scrutiny comittee
This is an effective check but has no power to alter any statutory instrument
Reviews all statutory instruments and will highlight concerns to both Houses
Disadvantage of negative resolution
very few statutory instruments are ever looked at
Disadvantages of power scrutiny commitee
it is a technical review not a policy based one. Can only make objections based on:
It imposes a tax or charge (only an elected body has the right to do that)
Has a retrospective effect
Gone beyond the powers given to it
Makes unusual or unexpected use of these powers
Unclear or defective in some way
Role of the joint scrutiny commitee
simply to scrutinise statutory interpretation
Aims of the Special Controls under the Legislative and Regulatory Reform Act 2006
removing a burden -Financial cost/Administrative inconvenience ect
Any Minister making a statutory instrument under this act must consult:
Organisations which are affected by the proposals
Devolved Assemblies
Law Commission
Orders made under this act have to go before Parliament by
Negative Resolution Procedure
Affirmative resolution procedure
Super-affirmative resolution procedure – gives Parliament more control
When may the courts control delegated legislation?
when a party applies to the queens bench division of the high court for a review
Ultra vires
the revie may find it ultra vires (beyond the powers given by the enabling act) and therefore void
Procedural ultra vires
A secondary body has exceeded the powers and failed to follow the procedural instructions in the parent act
Substantive ultra vires
The secondary body has gone beyond the powers granted to it and made more regulations than permitted
What effect may EU law have on delegated legisaltion?
May be found ultra vires if it conflicts with eu law
What will courts likely assume?
unless the enabling act specifically allow for it then there is no power to:
Make unreasonable regulations – Strickland v Hayes Borough Council 1896 – by law banning singing of any obscene song – held to be ultra vires as it was unreasonable.
Levy taxes
Allow sub-delegation
Advantages of delegated legislation
Saves Parliaments time
Allows for technical expertise to be used to fill in the details of a delegated legislation – the idea is that Parliament can debate the main principles but leave the detail for experts / local knowledge
Allows consultation
Allows quick law making
Easy to amend – eg. Changing minimum wage in line with inflation etc
Disadvantages of delegated legislation
undemocratically elected (this doesn’t apply to by-laws etc as they are made by local council who are also elected)
Sub-delegation ie. Civil servants making the law and just being approved or “rubber stamped” by the Minister of the Department
Large amount of delegated legislation means that it can be difficult to discover what the present law is. This is made worse by lack of publicity
Some Delegated Legislation has some very difficult and complex wording which makes it difficult to understand.
