Delegated Legislation Flashcards
Enabling act
Primary legislation passed by parliament giving other bodies power the power to make laws
Why are by laws made?
Save parliamentary time, local knowledge and expertise
Public Health Act 1907
Primary legislation, Weymouth and Portland BC used s82 s83 enabling act to pass local law ‘no person can ride a bicycle or tricycle whether propelled mechanically or by other means along a promenade’ (secondary legislation)
The Local Government Act 1972
Allows local authorities to make laws in certain areas
Trafalga Square and Parliament Square By Law 2002
Secondary legislation created by Greater London Authority, signed by Ken Livingstone 2003 (Labour) 1. Birds must not be fed. 2. Bird feed was not to be distributed - law passed to fit local circumstances
Corporation powers
Parliament can give public corporations and companies powers to make law within jurisdiction e.g The British Airports Authority or railways can enforce rules about public behaviour on premises
National Trust Act 1907
allows national trust to make by laws for areas of land they own
limitations laid down in act
Advantages of delegated legislation
lack of parliamentary time
can be made overnight - fast in emergencies
technicality of subject matter - MP’s dont have expert or local knowledge e.g The Public Health Act 1907
Flexibility - easy to revoke or amend unlike acts of parliament e.g National Minimum Wage 1998
Future needs - can respond quickly
Disadvantages of delegated legislation
too much of it - 3000 statutory instruments per year
lack of publicity and debate
less democratic
sub-delegation - mostly done by civil servants
lack of parliamentary controls - as there is so much
lack of judicial controls - judicial review expensive and time consuming
ministers making laws - not their role - goes against montagues theory
Statutory instruments
Made by government ministers who head up department e.g education transport
Wide powers to make delegated legislation - ‘legislative reform orders’ amending acts
Ministers can update the law in their areas
Allows specialist knowledge
Drawn up by civil servant lawyers
Quicker and easier to amend than acts of parliament
Used to bring an act into force - commencement order e.g Railways Act
National Minimum wage act 1998
Statutory instrument
Allow regular increases to minimum wage
Saves time
Police and Criminal Evidence Act 1984
Statutory instrument
Gave power to the minister for the Home Office to produce codes of practice for police - e.g police powers
The Constitutional Reform Act 2005
Statutory instrument
Power to Lord Chancellor - issue guidance on procedures for Judicial appointments commission
Orders in council
Privy council - current and former government ministers
The Emergency Powers Act 1920 - gives council authority to make laws
- dissolving parliament before an election
- Bringing an act of parliament into force
- dealing with foreign affairs - Afghanistan Order 2001
National emergency when government is not sitting - 9/11 attack Terrorism Order 2001 made using United Nations Act 1946 - allow freezing of funds to stop terrorism
The energy act 1976 (Reserve Powers) order 2000
Fuel crisis 2000 - truck drivers blockading refineries
Control of delegated legislation/supervision by parliament
Revocation
Negative resolution procedure
Affirmative resolution procedure - Police and Criminal Evidence Act 1984 (PACE) - primary legislation
The super-affirmative procedure
Committee supervision
MPs can ask questions in parliament
House of Lords can veto - Southern Rhodesian Act 1965
Judicial control
‘Ultra vires’ - beyond powers Agricultural, Horticultural, and Forestry Training Board v Aylesbury Mushrooms ltd.
Substantive Ultra Vires - beyond powers granted in enabling act - Attorney General v Fulham Corporation
Unreasonableness - manifestly unjust Strickland v Hayes
Other controls
Consultation
Publication
positives of parliamentary controls
Parliamentary sovereignty - can be revoked by parliament Affirmative and negative resolution procedures for laws of greater importance - allow some debate and a vote if sufficient MPs consider it necessary
MPs can ask questions and raise matter in parliament
House of Lords can revoke delegated legislation - Prevents House of Commons passing controversial legislation by using delegated legislation and bypassing parliament
Negatives of parliamentary controls
Too much (3000 per year) to check all effectively
Committee can’t comment or act on merits of delegated legislation no matter how bad it is
MPs can only ask questions if matters drawn to their attention
Positives of judicial controls
Gives general public means of challenging delegated legislation where a body has gone beyond powers granted to them
Negatives of judicial controls
Requires problem to be brought forward as legal case - fear of ignorance, losing, cost
Has to be a problem before a court case can be started
