Delegated Legislation Flashcards
Delegated Legislation
Law passed by someone other than parliament, but with parliaments permission
Where does the authority come from?
-Parliament passes an Enabling/Parent Act
-this act will set out a framework of law on a topic and allow someone else to make more detailed laws in the area
types of delegated legislation
-Orders in Council
-Statutory Instruments
-Bylaws
Who makes an Order in council
The king (monarch) and the privy council
When are Orders in Council used?
-in times of emergency
-when parliament are not available (eg summer) or are too busy
-to amend an act of parliament
examples of Orders in Council
Petrol Strikes
-passed a law where the military could bring petrol to emergency services
Foot and Mouth Crisis
-passed law saying cattle needed to be slaughtered to stop spread
Misuse of Drugs Act 1971
-Cannabis changed from class B to class C (2003) and then back to class B (2008)
where does Order in Council power come from?
Civil Contingencies Act 2004
Who makes Statutory Instruments
Government Ministers
-Parliament gives them permission in an Enabling/Parent Act
What are Statutory Instruments
Detailed Laws known as Ministerial Regulations
Most common form of delegated legislation (over 3000 passed yearly)
Statutory Instrument Example
Gillian Keegan (education secretary)
can make laws relating to education
eg- mobile phone ban
Education Act 1996
-allows education secretary to pass laws to alter national curriculum
eg- made climate change compulsory in geography curriculum
who makes Bylaws
Local Councils
Public Corporations
what are Bylaws for?
Allow the council to make laws regarding public behaviour in their area
/
Corporations to make laws regarding public behaviour on their premises
Local Council Bylaw examples
Laws relating to
-parking
-littering
-dog fouling
Public Corporations Bylaw examples
British Rail
London Underground
-smoking banned 1987
-alcohol banned 2008
Controls by Parliament
Parent/Enabling Act
Negative Resolution
Affirmative Resolution
Scrutiny Committees
Questioning of Government Ministers
Parent/Enabling Act (control)
-parliament can set boundaries in the enabling act
-these should be clear, unambiguous, and give ‘what’ and ‘how’ instructions that are open to very little interpretation
Negative Resolution (control)
The statutory Instrument made the minister will become law automatically within 40 days unless rejected by parliament
Most SI’s are negative resolution
Affirmative Resolution (control)
The Statutory Instrument will only become law if it is specifically approved by parliament (must be checked and voted on)
Used for those in controversial areas
-eg human embryology or changed to police power
Around 1/10 SI’s have an affirmative resolution
Scrutiny Committees (control)
These committees review statutory instruments that have come into force
If they believe a minister has exceeded the powers in the Parent Act, they can inform parliament
-they have no power to amend law
Questioning of Government Ministers (control)
MPs in the HoC can ask ministers questions about the laws they’re making
Their job is to scrutinise ministers
Control by the Courts
Judicial Review
Procedural Ultra Vires
Substantive Ultra Vires
Unreasonableness
Judicial Review (control)
delegated legislation can be challenged in the King’s Bench Division of the High Court
-the person making the challenge must be directly affected by the legislation
-the challenge will be made on the grounds of ultra vires
(law has gone beyond the powers that parliament granted in parent act)
Any DL found to be Ultra Vires becomes void
Procedural Ultra Vires
Procedure set out in Enabling/Parent Act has not been followed
Procedural Ultra Vires example
Aylesbury Mushroom Case (1972)
-minister given power to set up a training scheme for different industries
-enabling act stated he had to consult anyone who’d be affected first.
-failed to consult mushroom growers
-ultra vires and void
Substantive Ultra Vires
Minister has gone beyond powers set out in Enabling Act
Substantive Ultra Vires example
Fire Brigade Union (1995)
-changed made by home secretary to the criminal injuries compensation scheme were found to be Ultra Vires.
-changed scheme so that victims of crime were awarded less compensation
Unreasonableness
Where a Law is so unreasonable that no reasonable body would ever consider imposing it.
-if a law is unreasonable it is Ultra Vires
Unreasonableness example
Strickland v Hayes Borough Council (1896)
A bylaw passed that banned the use of obscene language in public and private
Found to be unreasonable (Ultra Vires & Void)
advantages of enabling act
Parliament can set limits to stop power being abused
Parliament can amend or repeal the enabling act (respects Parliamentary supremacy)
disadvantages of enabling act
boundaries given are often very wide
advantages of affirmative resolutions
Strong control as the statutory instruments must be checked and approved by parliament
ensures powers aren’t being abused
disadvantages of affirmative resolutions
Very few statutory instruments have affirmative resolutions because its too time consuming (1 in 10)
parliament can only approve or withdraw (cannot amend)
advantages of negative resolutions
This control saves Parliament time as they would not be able to check every statutory instrument
disadvantages of negative resolutions
Weak control as statutory instruments may be passed without even being looked at by parliament
advantages of scrutiny committees
Committee check a large number of statutory instruments
disadvantages of scrutiny committees
can only report back to Parliament
Have no power to amend
advantages of questioning of ministers
ministers held accountable
disadvantages of questioning of ministers
Often limited time in the House of Commons to do this
advantage of judicial review
Anyone affected by a piece of delegated legislation can ask the court to review it
disadvantages of judicial review
The public might not know about judicial review
expensive
time-consuming
Government departments will have more resources and funding to defend themselves.
disadvantage of ultra vires
Boundaries in the enabling act often very wide, which makes it very hard for laws to be declared ultra vires
advantages of delegated legislation
Saves parliaments time
laws can be passed faster
expertise
expert/local knowledge
flexibility
disadvantages of delegated legislation
Undemocratic
subdelegation
large volume
obscure wording
difficult to control
why is delegated legislation undemocratic?
The public have elected 650 MPs to make our laws
it’s undemocratic to give the power to one government minister or one local council
what is subdelegation?
Government ministers are often very busy
Law making is sometimes handed down another level
Statutory instruments are often made by civil servants who are not elected then ‘rubber-stamped’ by the government minister
what is the issue of large volume? 
large volume of law
this can make it difficult to find out what the present Law is
problem is also made worse by lack of publicity
what is the problem of obscure wording?
Complex language used, this can make it difficult to understand the law
