delegated legislation Flashcards
what is delegated legislation
parliament gives someone else the power to make law.
what allows someone to make delegate legislation and an example.
an enabling act, corona virus act 2020
what are the three types of delegated legislation
orders in council
by law
statutory instruments
who makes orders in council
the king and the privy council.
when are orders in council
amend or update laws
transfers responsibility between gov departments
make law in time of emergencies
an example of order in council
the misuse of drug act 1971
who make by laws
local authority and large public bodies.
who do by laws apply to
only apply to areas over which the council/ public bodies have control over
why do we have by laws
its quicker to them to make decisions and they should know the local area better than parliament
example of by law
ban on smoking in London underground
who makes statutory instruments
government departments and ministers
what can these people make statutory instruments about
can only be made about their area of responsibility
how many statutory instruments are made each year
around 3000
why do we have statutory instruments
these departments and ministers will have expert knowledge on the situations they are dealing with
example of statutory instruments
corona virus regulations 2020
4 reasons for delegated legislation
-parliament don’t have the time
-parliament wont always have the necessary expertise
-parliament might not know issues in local areas
-it can be changes quicker meaning there is a quick reaction to changing circumstances
why does there need to be controls on delegated legislation. and what are the three controls
because they are not elected and have been given a lot of power.
- enabling acts
-negative resolutions
affirmative resolutions
5 reasons enabling acts control delegated legislation
-parliament chooses what powers to delegate in the enabling act.
-it can decide which gov ministers to give power.
-specify who to consult/ how they make the delegated law
-specify where delegated law apply.
-they can remove or repeal power at any time
what happens in the negative resolution
SI becomes law but can automatically be rejected by parliament in 40 days, there is no debate on this issue.
what happens in the affirmative resolution
a debate will follow the introduction and both houses of parliament must expressly approve the SI before it can be introduced, but parliament cannot amend the act of accept or reject it
What does the scrutiny committee review/ check
Checks all statutory instruments
What can the scrutiny committee do
Draw the attention of both houses of parliament to any si which need farther consideration
Why might the scrutiny committee refer a si instrument back to parliament
- Si exceeds powers given in enabling acts
- si makes unexpected use of power
-s1 is unclear
What are scrutiny committee limitations
Cannot alter any s1 only refer the problem to paniament
Parliament is supreme so the validity of the enabling act cannot be challenged what can be challenged and by who
Delighted legislation, by someone with standing interest in the case.
What is the delegated legislation declared if it is void
Ultra vires (beyond powers given)
What are the three situation that do are declared ultra vires
1) the delegated legislation goes beyond he powers granted by the enabling act
2) the dl didn’t follow the correct procedure
3) a decision made under dl was unreasonable
What is the case for when delighted legislation went beyond the powers granted by the enabling act
R v Home Secretary ex parte fire brigade union
What happened in r v Home Secretary ex parte fire brigades union
The Home Secretary was allowed to declare the date for introducing the criminal injury compensation scheme however the Home Secretary changed the scheme as well as deciding the date to introduce it. He had done more than he was allowed to do under the enabling act and so was declared ultra vires
What is the case where delighted legislation did not follow the correct procedure
Agriculture training board v Aylesbury mushrooms
What happened in Agriculture training board v Aylesbury mushrooms
The minister of labour tried to introduce new regulations for the training of mushroom growers.
However they were meant to consult any group representing a large amount of mushroom growers but failed to consult a group who mad e up 85%of them (mushroom growers association) so the court decided that the law was ultra vires.
What was the case where a decision that was made under dl was unreasonable
Rodger’s v Swindon NHS trust
What happened in Rodger’s v Swindon NHS trust
Miss Rodger’s had breast cancer and needed to take the drug herseptin but was not approved by nhs and the said the couldn’t have it because they could only get it in exceptional circumstances so she sued them the court said that this was unreasonable from the nhs as it’s unreasonable to give different medical treatment to those who have the same medical needs so it was ultra virus
