Delegated Legislation Flashcards
Define
Delegated Legislation is law that is under the Authority of Parliament under a “parent” Act of Parliament – An enabling Act. This act creates the framework of the law.
Orders in council
Drafted by ministers and passed by the Queen and the Privy Council.
Used when an ordinary statutory instrument may be inappropriate. E.g. transferring responsibility between government departments.
Orders of Council were used to transfer power to the Welsh and Scottish assemblies under the Wales and Scotland Acts of 1998.
By laws
Parliament has given local authorities and some public bodies the right to make laws in certain areas.
Local authorities, such as county councils, district councils and parish councils can make laws under the Local Government Act 1972 “for the good rule and government” of their area covering things such as parking and banning drinking in certain places.
Statutory instruments
This is the most common type of delegated legislation. There were 3486 Statutory Instruments past in 2014.
Authority is given to Ministers in their areas of responsibility. For example the Minister of Transport has power under various Road Traffic Acts to make detailed traffic regulations. In 2003 using the Road Traffic Act 1988 SI 2695 banned the use of mobile phones whilst driving. A more recent SI has regulated the size of road signs.
Control by Parliament
Parliament has some control at the time the enabling Act is made to set limits for making delegated legislation under the Act.
Parliament holds the ultimate safeguard in that any piece of DL can be revoked and it can withdraw delegated powers
Some enabling Acts require affirmative resolution from Parliament before some DL can become law. Legislation must be laid before both Houses and voted on in a set time period.
Control by judiciary
Delegated legislation can be challenged in court. Anyone with a person interest (i.e. they are affected) may apply through the judicial review procedure.
Procedural ultra vires - where a public authority has not followed the proper procedure set out in the enabling Act.
Substantive ultra vires, where the delegated legislation exceeds the powers in the enabling Act. In R v Home Secretary where the Home Secretary made changes to the Criminal Injuries Compensation Scheme, he was held to have exceeded the power given in the Criminal Justice Act 1988.
Advantages
Saves Parliament time. Parliament does not have time to deal with every regulation and rule. Delegated legislation frees Parliament to focus on issues of policy rather than masses of detail.
Disadvantage
It is undemocratic because much of it is made by unelected people rather than Parliament. Civil servants are unaccountable to the electorate.
