Delegated Legislation Flashcards
8c - Delegated Legislation
• Occurs when Parliament passes a parent/enabling act which authorised another person or body to make a particular law
• Laws made this way are known as secondary law but have the same effect as those made directly by parliament
8c - Delegated Legislation - Examples
• Police and Criminal Evidence act 1984 (the parent act)
• Authorised the home secretary to make a statutory instrument regarding the tape recording of interviews of suspects at police stations
- Contained in the codes of practice which were created via statutory instruments
Delegated Legislation- Bylaws
• Made by local authorities or large corporations
• Made to deal with matters that affect the local area
• E.g. Fines for dog fouling
Delegated Legislation - Statutory Instruments
• Made by government ministers
- Relate to the minister’s area of responsibility
• Made to add detail to a piece of primary legislation that usually affects the whole country
• E.g. Road traffic act 1988
Delegated Legislation - Orders in Council
• Made by the monarch and privy council
- Consists of PM and other leading members of government
• Made to provide a quick response, usually when Parliament isn’t sitting in an emergency situation
• E.g. Emergency powers act 1920
8d - Control by Parliament
• Parliament can amend or repeal delegated legislation at any time
• The parent act itself is a form of control over delegated legislation as it will usually lay down strict requirements, limitations and procedures to be followed when making legislation
8d - Control by Parliament - Resolution Procedures
• These are applicable to statutory instruments only
8d - Control by Parliament - Affirmative Resolution
• Procedure requires some statutory instruments to be voted on by Parliament
• Essentially this procedure requires the statutory instrument to have the approval of both houses of Parliament
8d - Control by Parliament - Negative Resolution
• Procedure means that most statutory instruments become law unless a debate is requested by a member of Parliament
• Parliamentary members have 40 days to object to the statutory instrument and request a debate
8d - Control by Parliament - Super Affirmative Resolution
• Involves an additional stage of scrutiny where Parliament considers a proposal for a statutory instrument before the statutory instrument is formally presented (laid)
• This procedure is used for statutory instruments that are considered to need a particularly high level of scrutiny
• There are some specialised categories of statutory instrument that are used for particular purposes that are, or can be, considered under super affirmative resolution procedure
• These statutory instruments usually amend or repeal acts of Parliament
• E.g. legislative reform orders, localism orders, public bodies orders, regulatory reform orders, and remedial orders
8d - Control by Parliament - Scrutiny Committees
• Government ministers are accountable and can be questioned by Parliament
8d - Control by Parliament - Joint Select Scrutiny Committee
• Reviews all statutory instruments and brings to the attention of Parliament any points that need to be considered
• E.g. If a minister has gone beyond the powers set out in the enabling act
8d - Control by Parliament - House of Lords Delegated Powers Scrutiny Procedure
• Considers whether the provisions of a bill (before the parent act is passed) are about to give inappropriate law-making powers to other bodies
8e - Controls by Courts
• Delegated legislation can be challenged via judicial review in the courts under the doctrine of ultra vires
- This means that the delegated body has gone ‘beyond the power’ handed down to them in the enabling act
• Any delegated legislation which is declared ultra vires is void and ineffective
• In order to bring about any case for judicial review, a person must show ‘locus standi’
- They are directly affected by the legislation
• If they are seen to be no issue with the type of delegated legislation, it is declared to be infra vires
8e - Control by Courts - Process
• Defined as challenging a decision of a public body in court
• It can only be used if there’s no other effective way of challenging that decision, such as an appeal
• The judge is reviewing the lawfulness of the decision made by the public body or function only
• It is concerned with whether the law has been correctly applied and ensuring that the right procedures have been followed
• A judicial review case must be brought within three months of decision being challenged
• Private bodies cannot be challenged via the judicial review process unless they take on a public function such as running a prison
• Judicial review cases are heard in the administrative court
- Usually King’s Bench Division or High Court