Delegated Legislation Flashcards
What are the types of delegated legislation?
By-Laws
Orders in council
Statutory instruments
Describe what an order in council is.
A type of delegated legislation drafted by a Government Department and approved by the King and Privy Council (PM and group of senior politicians).
These are used in times of an emergency (when parliament are not sitting) under the Civil Contingencies Act 2004.
Examples of this are: War and Summer Recess.
An example of an order in council is the Misuse of Drugs Act 1971 (quickly change the classification of cannabis back to C after parliament changed it to C)
What Act illustrates Orders in Council?
Civil Contingencies Act 2004.
Orders in council used in times of emergency.
Give an example of an order in council.
Misuse of Drugs Act 1971
Changes cannabis classification from C back to B quickly.
Describe what a By-Law is.
Made by local authorities (council or company such as Network rail or Highways England) but must be approved by the relevant Secretary of State.
Created under the Local Government Act 1982.
An example of a by-law is fines for smoking on the bus, penalties for dog fouling on pavements etc.
What act are By Laws often created under?
Local Government Act 1982.
Describe what a statutory instrument is?
Statutory instruments are a form of delegated legislation that are laws made by government departments.
They allow changes to be made to Acts of parliament without parliament having to make a whole new act.
These are known as regulations and are nation wide in effect.
An example of a statutory instrument is The Dangerous Dogs Act 1991 having more dogs added to the list later.
What are the controls on delegated legislation by parliament?
- Enabling Acts:
Parliament can ensure that the power is used properly by setting out rules in the enabling act that they must follow.
These are- Who law making power is delegated to; the procedure they must follow; sometimes a period of consultation.
All statutory instruments must publicize all changes made to an act under the Enabling Act. (Statutory instruments act 1946)
Parliament can also repeal the powers, limit them or extend them.
- Affirmative and negative resolution procedures:
A set of procedures that parliament requires government ministers to follow before making statutory instruments.
Negative resolution procedures- MPs can put down a motion to annul the delegated legislation within 40 days but if no one objects after 40 days the law becomes permanent.
Affirmative resolution procedures- Controversial statutory instruments must be debated and voted on in one of the houses before becoming a law, this must be approved within 28-40 days.
Legislative and Regulatory reform act 2006- ministers can make changes to the statutory instruments if made within 60 days.
- Scrutiny committees:
Keep delegated laws in check without actually making amendments themselves (report to parliament)
Joint committee on Statutory Instruments- members of the house of commons and house of lords check through SI and report any errors to parliament
(If the regulation is unclear, if it goes beyond the powers in the enabling act, if it imposes a tax or charge)
The house of lords delegated powers scrutiny committee-
Keep under review the extent to which legislative powers are delegated by parliament to government ministers.
The house of lord merits of statutory instruments committee-
Examine content of statutory instruments to ensure it is subject to the parliamentary procedure.
What is a control of delegated legislation?
Since elected representatives don’t directly make delegated legislation, it is necessary to ensure that the power delegated isn’t abused. There are two sets of controls on delegated legislations: controls by parliament and controls by the courts.
What act states that statutory instruments must publicise all changes made to law?
Statutory instruments Act 1946
What are affirmative and negative resolution procedures?
A set of procedures that parliament requires government ministers to follow before making statutory instruments.
Negative resolution procedures- MPs can put down a motion to annul the delegated legislation within 40 days but if no one objects after 40 days the law becomes permanent.
Affirmative resolution procedures- Controversial statutory instruments must be debated and voted on in one of the houses before becoming a law, this must be approved within 28-40 days.
Legislative and Regulatory reform act 2006- ministers can make changes to the statutory instruments if made within 60 days.
What are the scrutiny committees?
A group of people that keep delegated laws in check without actually making amendments themselves (report to parliament)
Joint committee on Statutory Instruments- members of the house of commons and house of lords check through SI and report any errors to parliament
(If the regulation is unclear, if it goes beyond the powers in the enabling act, if it imposes a tax or charge)
The house of lords delegated powers scrutiny committee-
Keep under review the extent to which legislative powers are delegated by parliament to government ministers.
The house of lord merits of statutory instruments committee-
Examine content of statutory instruments to ensure it is subject to the parliamentary procedure.
What Act further enforces negative and affirmative resolution procedures?
Legislative and Regulatory reform act 2006- ministers can make changes to the statutory instruments if made within 60 days.
What are the controls by the courts on delegated legislation?
- Judicial Review:
Where a citizen affected by a regulation or by-law, which they believe was Ultra Vires, can apply to the King’s Bench Division. If this is granted the court first issues an injunction (stops the regulation or by-law throughout the duration of the case) - Types of Ultra Vires Actions:
When gov. ministers or local authorities go beyond the powers delegated to them by parliament which eventually go to court to investigate it. If judges’ rule that it is Ultra Vires, the law will be declared void and no longer be used.
There are three types of Ultra Vires Action:
Procedural Ultra Vires: Where the procedure set out in the enabling act isn’t properly followed.
Substantive Ultra Vires: Allows something that the enabling act did not intend.
Unreasonable Ultra Vires: sometimes when a law is drafted too wide to achieve its purpose.
Give cases to illustrate the 3 types of Ultra Vires.
Procedural Ultra Vires:
Aylesbury Mushroom case- Minister of Labour failed to follow the procedure set in the enabling act as they didn’t consult the Mushroom Growers Association.
Substantive Ultra Vires:
R v secretary of State for Health ex parte Pfizer- The minister of health was found to have acted Ultra Vires as he advised doctors to not prescribe Viagra.
Unreasonable Ultra Vires:
Strictland v Hayes Borough council- The council made a by-law prohibiting the singing of obscene song and obscene language, but this was unreasonable as it was drafted too wide to serve its purpose.
