delegated legislation Flashcards
what are the three types of delegated legislation
orders in council, statutory instruments. bylaws
who makes orders in council
the privy council- a council made up of the prime minister and leading government ministers
who must approve all orders in council
the queen
what are four key uses of orders in council
to give effect to eu directives
to make quick reactionary laws in emergency situations
to transfer powers between different government departments
to amend existing laws
what is an example of an order is council to give effect to an eu directive
data protection act 1998
what act allows the privy council to make emergency laws
the civil contingencies act 2004
what are statutory instruments
rules and regulations made by civil servants and government ministers
how many statutory instruments are passed each year
over 3000
what do statutory instruments allow
a degree of flexibility as existing acts of parliaments can be changed without going through the lengthy legislative process
what four key things do statutory instruments allow
- update, change and modernise existing acts of parliament
- add expert and technical detail to existing acts
- set out the framework for new acts with the detail being added later
- repeal existing acts of parliament
what is a key example of when a statutory instrument was used to change an existing act
abortion act 1967- abortion up to 28 weeks was lowered to 24 weeks
what are bylaws
laws that only effect certain jurisdictions, made by public corporations and local authorities
what type of offence do bylaws usually relate to
regulatory type offences such as parking restrictions and alcohol exclusion zones
what are four parliamentary controls on DL
- enabling act
- affirmative/ negative resolutions
- scrutiny committees
- the legislative and regulatory reform act 2006
describe enabling acts and give an example.
parliament grants authority for delegated legislation through an enabling act which states exactly who can make a law and exactly when they can do it. foe example the civil contingencies act 2004 states that the privy council can only make emergency laws in emergency situations
describe negative and affirmative resolutions
every single statutory instrument is subject to either a negative or affirmative resolution. most are subject to negative resolutions which means that parliament has 40 days to reject it before it automatically passes through. however, some are subject to affirmative resolutions which require the approval of parliament to be passed. the enabling act will state which a statutory instrument is subject to, and if it does not then it will automatically be negative resolution.
what is the scrutiny committee for statutory instruments and what do they do
the joint select scrutiny committee review every singly statutory instrument. they provide feedback on any considerations to parliament and also have the general power to question MPs in the house of commons on their decisions.
what is the scrutiny committee for other forms of DL
the Delegated Powers Scrutiny Committee. they do not have the power to alter legislation but will feedback to parliament if they believe that a piece of DL has gone beyond its powers in any of the following ways; goes beyond enabling act, implements tax or fine, retrospective effect, unexpected use of power
what does the legislative and regulatory reform act 2006 do
sets out a procedure that must be followed for particular types of SIs. when a minister creates an SI that repeals and existing act of parliament or removes a burden from an existing act of parliament they must first consult the law commission, welsh assembly and any other organisation that will be impacted by the change
what are the two methods of control for delegated legislation
control by parliament, control by courts
what is meant by the term ultra vires
gone beyond powers outlined in the enabling act
who can challenge a piece of DL
a person of standing (somebody impacted by the legislation)
how will it be decided whether a piece of DL is ultra vires
there will be a judicial review
what are the two types of ultra vires
procedural ultra vires
substantive ultra vires
what is procedural UV and a key case for this
the correct procedure was not followed when creating the dl. case of aylesbury mushrooms where the mushroom growers challenged a law because they had not been consulted on it when they should have been.
what is substantive UN and a case for this
the DL is doing more than what the enabling act allows. case of r v home secretary fire brigade- the home secretary made a law on compensation for fire fighters which was challenged by the fire brigade union. the judge agreed that the home secretary had gone beyond the powers of the enabling act.
what is other groups of people will be considered in a judicial review and what case established this
those that feel that the law is unreasonable, established by the case of wednesbury which saw ‘wednesbury reasonableness’
in what case was the principle of wednesbury reasonableness applied
strickland- local authority banned the use of obscene language and this was seen as unreasonable
