Controls on Delegated Legislation Flashcards
booklet 6
what is parliamentary control
applies to parliament- checking the laws before they have been passed and deciding if they should be approved or not.
what is judicial control
This applies to the Courts.
The Courts control delegated legislation by investigating the laws after they have been passed. Issues need to be reported to them through Judicial Review.
A law can be declared void if it is ultra vires (beyond the power) of the body who has tried to introduce the law
what are the 4 Parliamentary Control
1)parent act
2)positive resolution
3)negative resolution
4)scrutiny committtee
what is the parent act
clue- control
Includes the rules on who can make laws, what they can make laws on, who needs to be consulted, and if positive or negative resolution is needed. Can be repealed/amended to take away power
what is the positive resolution
clue- double checking
Parliament must check and sign off on the law before it can come into effect. This happened with the Dangerous Dogs Act 1991.
what is negative resolution
clue- 40 days before
The law must be ‘laid before Parliament’ (e.g. made public) for 40 days and not be objected to before it can become law. It was used with the Gaming Act 1968.
what is the scrutiny committee
reviews all Statutory Instruments and refers them to Parliament for review if they impose a tax, are retrospective, go beyond the powers granted, or are unclear/defective
what are the three types of ultra vires orders the courts can make
PROCEDURAL ULTRA VIRES
SUBSTANTIVE ULTRA VIRES
WEDNESBURY UNREASONABLENESS
what does procedural ultra vires mean +
example
The correct procedure was not followed when the law was made. Seen in Aylesbury Mushrooms 1972-
The minister of labour had to consult before writing regulations about mushroom growing. He failed to consult the mushroom growers association (one of the main bodies) and as such the regulations were invalid.
what does substantive ultra vires mean
+ case
The substance of the law was not what the body was allowed to do. Seen in AG v Fulham Corp 1921- The council was empowered to set up wash houses for residents to do their laundry. It decided to also run a paid-for laundry service which they werent meant to have to pay
what does WEDNESBURY UNREASONABLENESS
mean
+ case
The law passed was so unreasonable that no reasonable person could think of it and is therefore wrong. Seen in APPH v Wednesbury Corporation 1948- operate a cinema, on condition that no children under 15, whether accompanied by an adult or not, were admitted on Sundays. Wednesbury’s condition was unacceptable and outside the power of the corporation to impose.
effectiveness of the parent act and explination of the local gov act 1972
Is an effective control as it lays out the original rules on when the law can be passed, on what, and by whom. It can also be repealed to take the power away from the body if it is not used correctly. E.g. Local Government Act 1972 - UK law that regulates the organization and functions of local government areas and authorities in England and Wales.
extra point for the parent act
However, the wording could be manipulated by bodies wishing to have more power than they are given
effectiveness of the positive resolution and dangerous dogs act involvement
Is effective because it ensures that every law is checked by Parliament before it comes into effect. Prevents abuse of power and deters bodies from trying to abuse it too. E.g. Dangerous Dogs Act 1991 Home Secretary had to have approval to add breeds to the list.
extra for positive resolution
However this is used rarely so deterrence not as effective.
effectiveness of the negative resolution- what does the gaming act 1968 have to do with this
Is less effective because they often go unchecked and become law regardless of whether they may have issues. Gives delegated bodies opportunity to have a law ‘slip through the net’. E.g. Gaming Act 1968 Gambling Commission rules use this.
extra for negative resolution
However, they do save time for Parliament.
effectiveness of judicial controls
They are only effective when a case is brought before court, which means someone has challenged the legislation through judicial review. If nobody challenges the law, it cannot be brought before the court. E.g. is nobody challenged the law in Aylesbury Mushrooms 1972 it would have still applied to Mushroom Growers.
extra for judicial controls
However when cases do reach court they are able to declare law void so are very effective then.
evaluation on controls of delegated legislation- positives
1)Saves time for Parliament
2)Local Knowledge used
3)Allows laws to be passed quickly in emergencies
4)Expert knowledge used
Saves time for Parliament
development w/ e.g- covid
Parliament has more time for tasks which may be more urgent. e.g. dealing with Coronavirus nationally whilst local governments look at local lockdowns
extra for saves time for parliament
However some issues are too important to be delegated even if it does save time
Local Knowledge used
development w/ e.g- local
Local governments have a clearer idea on what is needed in their local area. e.g. Parking restrictions in Wolverhampton on matchday (Local Government Act 1972)
local knowledge extra
However Parliament needs to retain some control so local groups don’t exceed powers
expert knowledge used development w/ e.g - popo
Those working in government depts have more expertise on complicated topics such as tax law. Home Department has better idea on police practices (PACE 1984)
expert knowledge used extra
However the work of these departments should still be checked by Parliament
Allows laws to be passed quickly in emergencies
development w/ e.g - bank accounts 2001
Parliament takes months to introduce a new law through the legislative process – whereas statutory instruments and order in councils can take only hours. Such as law freezing bank accounts of suspected terrorists following 9/11
allows laws to be passed quicky in emergencies extra
However rushed laws can lead to errors and this can have a negative impact on the quality of the laws being passed
negatives of controls on delegated legislation
1)Undemocratic
2)Hard to track and monitor
3)Lack of public awareness
4)sub-delegation
Undemocratic
dev w/ e.g (not a case)
Parliament is passing power down to other bodies which means that those elected to make laws are no longer in charge of doing so. E.g. Privy Council and Orders in Council made by Royal Family/ex-leaders/judges/bishops
Hard to track and monitor
dev
The huge volume of statutory instruments passed (over 3,000) and bylaws around all towns and cities in addition make it hard for Parliament to keep control over all delegated legislation that is passed.
Hard to track and monitor extra
If it is impossible to track the laws, it would be even harder to have time to pass these laws
Lack of public awareness
dev
Due to the large volume of legislation that is passed each year through different forms of delegated legislation and the lack of publication when each new law is passed, it can mean that the public are unaware of what laws they should be following – which is against the rule of law
lack of public awareness extra - in addition
In addition, the lack of media coverage for delegated legislation as opposed to national laws makes it even harder to follow
Sub-delegation
dev w/ e.g … passing jobs
This is the risk that the powers to make laws might be delegated further, so that the law is not actually written by the person given the power but instead is written by someone else and ‘rubber-stamped’ – e.g. written by civil servants in government departments and signed off by the government minister without due care
sub- delegation extra - in addition
This then makes the process even less democratic as civil servants are not elected by the people
undemocratic extra- soz for inconvience of order future me its year 13 jan 1st me typing this but year 12 us made this mistake but lets not blame her either im sure she didnt mean it
However local councils and heads of government depts are elected so there is some democracy still
