Delegated legislation Flashcards
What is delegated legislation
Law created by ministers or other bodies under powers given to them by an act of parliament
What act grants these bodies their power
Enabling act
Reason to use delegated legislation
Parliament may not have the necessary experience, Parliament doesn’t have time, By laws deal with local issues, Laws can be introduced quicker
What is the enabling act
Sets out the framework of the law and delegates authority to others to make more detailed law in that area
What does the enabling act specify
Who can make the law, in what area and the procedure they must follow
What are the three types of delegated legislation
Orders in council, Statutory instruments and By laws
What are orders in council for
Can be used to bring an act into force, dissolve parliament, reorganise responsibilities, bringing acts together, transferring responsibility between government and can make laws in emergencies
What are statutory instruments
A piece of legislation created by a government minister under the authority of the enabling act
What do statutory instruments refer to
Rules and regulations made by the government ministers regarding their area of responsibility
How many statutory instruments are made every year
Around 3000
What can statutory instruments also be used for
To update the law
What are by laws
Laws made by local authorities to cover matters in their own area
What can a county council do
Pass by laws that effect the whole country
What can by laws control
Parking restrictions, traffic control and regulating behaviour
What are the 4 controls parliament have
Approval of the enabling act, Negative resolution procedure, Affirmative resolution procedure and Scrutiny by committee
What is the approval of the enabling act
Parliament controls delegated legislation by passing the enabling act that has the guidelines that must be followed
What can the enabling act be
Repealed, revoked and amended at any time and then parliament may be required to vote its approval
What is negative resolution
This means statutory instruments will automatically become law unless rejected by parliament in 40 days
What is the issue with negative resolution
Few are looked at every year so they are passed without being checked
What is affirmative resolution
Statutory instruments will not become law unless it has been approved by parliament
What are some issues with affirmative resolution
Only a small number are subject to this and parliament cannot amend statutory instruments they can only annul or withdraw them
What is the scrutiny committee
Are effective to check statutory instruments
What does the scrutiny committee ensure
That statutory instruments do not impose a tax or charge, have a retrospective effect that was not provided by the enabling act, appear to have gone beyond its powers or used them in an unusual way
How effective are parliament controls
Act as a check however not all can be checked, By laws allow local issues to be addressed, Affirmative requires debate so its time consuming, Committee report back to parliament
What are the 4 controls the courts have
Judicial review, Substantive ultra vires, Procedural ultra vires, Wednesbury unreasonableness
What is judicial review
Control delegated legislation through the doctrine of judicial review and decides whether the legislation is ultra vires and challenges the lawfulness of administrative decision making
What does ultra vires mean
Acting or gone beyond ones legal power or authority
Who partakes in judicial review
Special administrative court within the kings bench divisional court
What must the person challenging the legislate in judicial review have
A standing (interest) and is directly affected by the legislation
What is procedural ultra vires
The legislation is declared ultra vires because the correct procedure in the enabling act was not followed
What is substantive ultra vires
The rule making body does not have the substantive power under the enabling act to make the rules in question
What is wednesbury unreasonableness
The decision is so unreasonable that no reasonable body would ever consider imposing it
The effectiveness of the controls by court
If the legislation is ultra vires its struck down by the court, Ensures laws are created in accordance to the enabling act, Courts cannot amend legislation they can only declare it void, Judicial review only occurs if the case comes to court however people may not have the legal fees
What will happen if an administrative body has used their legislative power in a way that goes against the human rights act
It will be declared ultra vires
Advantages of delegated legislation
Time saving, speed, Detail, Flexibility, Controlled by parliament and court
Disadvantages of delegated legislation
Delegation of law, Undemocratic, Large volume, Difficult to understand if it doesn’t come from parliament
