Delegated Legislation Flashcards
What is delegated legislation?
Law made by some person or body other than Parliament, but with the authority of Parliament
What does the enabling Act do?
Sets out the general principles and then delegates power to others to make more detailed law in the area
What are the three types of delegated legislation?
- Orders in Council
- Statutory Instruments
- By-Laws
Who has authority to make Orders in Council?
The Queen and the Privy Council
What do Orders in Council allow?
The government to make laws without going through Parliament
Who are given authority to make statutory instruments?
Government ministers for areas under their particular responsibility
Who makes up the Privy Council?
Prime Minister and other leading members of the government
What must there be to allow the privy council to make Orders in Council?
Enabling act
Who will the Order in Council be drafted by?
The relevant government department
What are examples of Orders in Council?
- bringing EU directives into UK law
- transferring responsibilities between government departments
- bringing acts of Parliament into force
- dissolving Parliament before a general election
- making law in emergency situations under the CIVIL CONTINGENCIES ACT 2004
Who are given authority to make statutory instruments?
Government ministers
What effect do statutory instruments have?
National
What is an example of a statutory instrument?
ROAD TRAFFIC ACT 1988 which allows the Secretary of State for transport to make regulations prescribing types of helmets acceptable for motorbikes
How many statutory instruments are made each year?
3000
Who are given authority to make by-laws?
Local authorities to cover matters in their area or public corporations
What are examples of by-laws?
- parking restrictions
- dog fouling
- smoking restrictions
How can parliament control delegated legislation?
- setting out powers in the enabling act placing limits on what can be done
- can repeal the enabling act at any time
What is the negative resolution procedure?
A statutory instrument will become law unless rejected by either House of Parliament within 40 days
What is affirmative resolution procedure?
A statutory instrument will not become law unless specifically approved by Parliament
What can the Scrutiny Committee do?
Draw attention to technical points that need further consideration
When can the courts control delegated legislation?
On the ground that it’s ultra vires
What is procedural ultra vires?
Where a body has not followed the specified procedures set out in the enabling act for creating the delegated legislation
What case is used to demonstrate procedural ultra vires?
R V SECRETARY OF STATE FOR EDUCATION AND EMPLOYMENT, EX PARTE NATIONAL UNION OF TEACHERS
What happened in R V SECRETARY OF STATE FOR EDUCATION AND EMPLOYMENT, EX PARTE NATIONAL UNION OF TEACHERS?
The high court held that a statutory instrument setting conditions for appraisal and access to higher pay rates for teachers was beyond the powers given under the EDUCATION ACT 1996 and it only had four days for consultation
What is substantive ultra vires?
Where the delegated legislation goes beyond the power granted by the enabling act
What case demonstrates substantive ultra vires?
R V SECRETARY OF STATE FOR HEALTH, EX PARTE PFIZER LTD
What happened in R V SECRETARY OF STATE FOR HEALTH, EX PARTE PFIZER LTD?
It was held that guidance from the Secretary of State for health advising doctors to prescribe viagra in only limited circumstances went beyond the powers given in the enabling act
What does the case STRICTLAND V HAYES BOROUGH COUNCIL SAY?
The courts can declare delegated legislation that they find unreasonable to be invalid. This may be because the rules are unjust, made in bad faith or are so perverse that no reasonable person would have made them
What happened in STRICTLAND V HAYES BOROUGH COUNCIL?
A by-law prohibiting the singing of any obscene song and the use of obscene language was held to be unreasonable because it was too widely drawn and covered acts done in private as well as those in public
What are the advantages of delegated legislation?
Saves parliamentary time, local authorities know the needs of their areas, experts can be consulted, can be amended or revoked easily
What are the disadvantages of delegated legislation?
Undemocratic, sub delegated to civil servants of the ministers in charge,
