Chapter 4-Law Marking: delegated legislation Flashcards
Definition of delegated legislation.
Law made by some one other than parliament but with the authority of parliament.
3 different types of delegated legislation are?
Orders in council
Statutory instruments
By-laws
Orders in council are made by who?
The queen and the privy council have the authority to make orders in council.
Privy council is made up of who?
Prime minister and other leading members of government.
Orders in council can be made in a wide range of matters, especially?
Transferring responsibility between government departments.
Bring acts of parliament into force
As member of EU giving legal effect to European directives.
Under which act does privy council have power to make decisions in emergency situations?
Civil contingencies act 2004
Example of act made by orders in council?
Misuse of drugs act 1971
Made cannabis a C class drug. 5 years later gov decided to make it a B through orders in council.
There must be a …….. act allowing the privy council to make orders in council on particular topics?
Enabling
Another example of act that gives power to make orders in council?
Constitutional reform act 2005
Statutory instruments definition.
Rules and regulations made by government ministers.
Example of statutory instrument which includes a lot of detail?
Building regulations 2010
10 parts and 6 schedules.
Amended number of times by further regulations.
How many statutory instruments are made a year?
3000
Another example of a statutory instrument.
Codes of practice under PACE (police and criminal evidence) act 1984
By-Laws definition
Made by local authorities or public corporations to cover matters within their area.
Examples of by-laws?
Matters as banning drinking in public places or banning people from riding cycles in local parks.
Parliaments has 4 ways to check on delegated legislation what are they?
Affirmative resolution
Negative resolution
questioning of government ministers
Joint select committee on statutory instruments.
Affirmative resolutions.
This means the statutory instrument will not become law unless specifically approved by parliament. The need for an affirmative resolution will be included in the enabling act.
Negative resolutions
Most other statutory instruments are subject to this, it means the relevant statutory instrument will be law unless rejected by parliament within 40 days.
What’s the main problem with negative resolutions?
Very few of the statutory instruments will be looked at.
Questioning of government ministers.
Individual ministers may be questions by MP’s in parliament on the work of their departments.
Scrutiny committee
The committee reviews all statutory instruments and will draw attention to both houses to points that need further consideration.
What are the main grounds for referring a statutory instrument back to the Houses of Parliament?
It imposes a tax or charge(only an
elected body has such a right).
It appears to have retrospective effect
It appears to have gone beyond the powers given under enabling legislation
It makes some unusual or unexpected use of those powers
It is unclear or defective in some way.
What does the scrutiny committee have the power to do?
Only report back on findings
No power to alter any statutory instruments.
Main problems of statutory instruments ?
Review is only a technical one limited to the points set out above.
Even if committee find a breach of some sort they cannot alter any regulations or stop them from becoming law.
The Legislative and regulatory reform act 2006
Sets procedure for the making of statutory instruments which are aimed at repealing an existing law in order to remove a ‘burden’.
The term ‘burden’ means?
A financial cost
An administrative inconvenience
An obstacle to efficiency; productivity or profitability
A sanction, criminal or otherwise, which affect the carry on of any unlawful activity.
Any minister making a statutory instrument under the powers of the Legislative and Regulatory Reform act 2006 must consult various people and organisations these include?
Organisations which are representative of interests substantially affected by the proposals
The Welsh parliament in relation to matters upon which the Assembly exercises functions
The law commission where appropriate
Orders made under legislative and regulatory reform act 2006 must be laid before Parliament. There are 3 possible procedures?
Negative resolution procedure
Affirmative resolution procedure
Super affirmative procedure
Negative resolution procedure explain?
Where the minister recommends that this procedure should be used, it will be used unless within 30 days one of the Houses of Parliament objects to this.
If the negative resolution procedure is adopted, the legislation will not become law until it has been laid before parliament for 40 days.
Affirmative resolution procedure explain?
Requires both House of Parliament to approve the order; even though the minister has recommended this procedure parliament can still require the super affirmative resolution procedure to be used.
Super-affirmative resolution procedure explain?
Under this the minister must have regard to:
Any representations
Any resolution of either House of Parliament
Any recommendations by a committee of either House of Parliament who are asked to report on the draft order.
Super affirmative resolution procedure gives what kind of power
Gives parliament more control over delegated legislation made under the Legislative and regulatory reform act 2006.
Delegated legislation can be challenged in the courts on the ground that it is Ultra Vires define this term.
It goes beyond the powers that the Parliament granted in the enabling Act.
Any delegated legalisation that is ultra vires is not valid law.
Example of delegated legislation which was ruled to be ultra vires and not effective was?
R v Home Secretary,ex parte Fire brigades union (1995)
Where changes made by the Home Secretary to the criminal injuries compensation scheme were held to have gone beyond the power given to him in the CJA 1988.
The courts will presume that unless an enabling act expressly allows it, there is no power to do any of the following:
Make unreasonable regulations
Levy taxes
Aloe sub-delegation
Aylesbury Mushroom Case (1972)
Minister of Labour had to consult ‘any organisation… appearing to him to be representative of substantial numbers of employers engaging in the activity concerned.’
His failure to consult the Mushroom growers’ association which represented 85% of all mushroom growers mean that his order establishing a training board was invalid as against mushroom growers.
R v secretary of Stare for Education and employment, ex perte National Union of Teachers (2000)
High court judge ruled that a statutory instrument setting conditions for appraisal and access to higher rates of pay for teachers was beyond the powers given under the Education Act 1996.
What can happen if statutory instruments conflict with European Union legalisation?
They can be declared void.
Advantages of enabling act
Parliament sets limits
Parliament can amend or repeal act
Disadvantage of enabling act
The powers in the act may be very wide
Advantages of delegated powers scrutiny committee
Looks at proposed powers before they are enacted
Should ensure that only appropriate powers are given
Disadvantage of delegated powers scrutiny committee
Can only report- cannot amend bill
Advantages of affirmative resolution
Means parliament must agree with the regulations
Disadvantages of affirmative resolution
Time consuming- cannot be used for all statutory instruments
Advantages of negative resolution
Gives mps the opportunity to check statutory instruments before they come into force.
Disadvantages of negative resolution
Unlikely that many statutory instruments will be looked at.
Scrutiny committee advantages
Ensures: Do not impose taxes or Go beyond the powers Are not retrospective Do not make unusual or unexpected use of powers Are not unclear or defective
Disadvantages of scrutiny committee
Only a technical check- cannot check substance of the statutory instruments
Committee can only report to parliament - it cannot make changes
Advantage of judicial review doctrine of ultra vires
Anyone affected by the delegated legislation can ask for a judicial review.
Court can declare delegated legislation void.
Disadvantage of judicial review doctrine of ultra vires
It is expensive to take court proceedings
Can normally only do this if the correct procedure has not been followed or if the delegated legislation goes beyond the power given by the enabling act
Need for detailed law?
Using delegated legislation means the parliament has control, through the use of the Enabling Acts, of what regulations are passed.
At the same time use of delegated legislation means that other bodies do the rest of the work
Need for expert knowledge
Many regulations need expert knowledge of the subject matter in order to draw up the most effective laws.
It is thought that it is better for parliament to debate the main principles thoroughly but leave the detail to be filled it by those who have expert knowledge
Need for local knowledge
For local by laws the local councils know their own areas and can decide which areas need drinking bans and etc.
It would be impossible for parliament to know local requirement of every city
Need for consultation
By creating law through delegated legislation ministers can have the benefit of consultation before having regulations drawn up.
Some enabling acts giving the power for delegated legislation set out that there must be consultation before the regulations are created
An example of a need for consultation before becoming regulation?
Before any new or revised police code of practice under the police and criminal evidence act 1984 is issued there must be consultation with a wide range of people including the law society
Advantage of delegated legislation (saves parliamentary time)
Parliament does not have time to consider and debate every small detail of complex regulations.
Making such regulations through delegated legislation saves parliamentary time
Advantage of delegated legislation (allows quick law making)
Process of passing an act takes a considerable amount of time and in an emergency parliament may not be able to pas law quickly enough, orders in council, especially, can be made very quickly.
Disadvantage of delegated legislation (sub delegation)
Means that the law making authority is handed down another level.
This causes comments that much of our law is made by civil servants and merely ‘rubber stamped’ by the minister of that department.
