Delegated legislation Flashcards by Rhys Dent

What is delegated legislation?

Delegated Legislation is a law made by a body other than Parliament but with the authority given to it by Parliament. This power is delegated via a Parent or Enabling Act.

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Give 3 reasons why parliament delegates legislation.

Quick
Easier to amend
Expertise
Local knowledge

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What are the 3 main types of delegated legislation used?

Statutory instruments
Orders in Council
By-laws

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Definition - by-law.

Byelaws are local laws made by a local council under an enabling power contained in a public general act or a local act requiring something to be done – or not done – in a specified area. They are accompanied by some sanction or penalty for their non-observance.

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Example of a by-law

Banning dogs from certain areas – children’s play areas
Fines for littering

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Definition of statutory Instrument.

A government or executive order of subordinate legislation
Statutory instruments are governed by the Statutory Instruments Act 1946.

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Example of a statutory instrument

Brexit to make new rules that govern how we trade with Europe – often copied and pasted from the European law.

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Definition - ‘Orders in Council’.

Orders in Council are Orders that have been approved at a meeting of the Privy Council personally by The King. They fall into two broad categories, statutory and Prerogative.

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Definition - Statutory order

Statutory Orders are made under any of the numerous powers contained in Acts of Parliament which give His Majesty a power to make Orders

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Definition - Prerogative order

Prerogative Orders are made under the inherent power of the Crown to act on matters for which Parliament has not legislated.

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Example of Orders in Council .

Used in times of emergency - WW2 COVID

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Identify the most suitable type of delegated legislation for…
1. A national emergency such as an outbreak of war involving the UK.

Orders in council

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Identify the most suitable type of delegated legislation for…
2. Where an enabling Act authorises the issuing of regulations concerning police powers.

Statutory Instrument

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Identify the most suitable type of delegated legislation for…
3. The local imposition of penalties for dogs fouling footpaths.

Byelaw

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Identify the most suitable type of delegated legislation for…
4. The imposition of a fine for failure to purchase a train ticket for travel on the local network.

Statutory Instrument

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Identify the most suitable type of delegated legislation for…
5. To implement a new national tax.

Statutory Instrument

Name the 2 main controls on delegated legislation?

Parliamentary
Courts

By what means does parliament control delegated legislation?

Statutory Instruments are scrutinised by:
the Joint Committee on Statutory Instruments (JCSI)

the Secondary Legislation Scrutiny Committee (SLSC).
The Scrutiny Committee reviews all Statutory Instruments and will draw Parliament’s attention to points that need further attention.

Give 3 examples of when the Scrutiny committee could make a referral.

It imposes a tax or charge (only elected bodies have this right)
It appears retrospective which was not provided for in the enabling Act
It appears to have gone beyond the powers given by the enabling Act
It makes unusual or unexpected use of powers
It is unclear or defective in some way

How is Parliament able to exercise additional control over delegated legislation through resolution procedures?

Affirmative Resolution Procedure
Negative Resolution Procedure
Supper-Affirmative Resolution Procedure

Definition of Affirmative Resolution Procedure.

The Affirmative Resolution Procedure requires Parliament to approve the measure before it can become law e.g., new police Codes of Practice under Police and Criminal Evidence Act 1984 (PACE) requires Parliamentary approval.

Parliament however cannot amend any measures just approve, annul or withdraw them.

Definition of Negative Resolution Procedure

Most statutory instruments use the Negative Resolution Procedure which means that the statutory instrument will become law unless rejected by Parliament within 40 days. They are available for MPs to consider but as there are so many it is likely that only a few will be looked at.

Definition of Super-Affirmative Resolution Procedure

The Super-Affirmative Resolution Procedure is for statutory instruments made under the Legislative and Regulatory Reform Act 2006. Under this process, a minister wanting to introduce a new Statutory Instrument must consider any proposals put forward by PARLIAMENT. These will include any amendments suggested at committee stage or resolutions by either House. Therefore, Parliament has more control over statutory instruments that a minister wants to introduce.

The Legislative and Regulatory Reform Act 2006 - purpose?

The Legislative and Regulatory Reform Act 2006 sets procedure for the making of statutory instruments which are aimed at repealing an existing law in order to remove a ‘burden’. For the purpose of the act a burden includes:
* a financial cost
* an administrative inconvenience
* Anything that blocks efficiency, productivity or profitability
* Any sanction which affects the carrying out of a lawful activity

How is delegated legislation controlled via the courts?

Ultra Vires Definition. Latin, meaning "beyond the powers." Describes actions taken by government bodies or corporations that exceed the scope of power given to them by laws or corporate charters.

Definition - procedural Ultra Vires

Procedural Ultra Vires is where delegated legislation is invalid because procedures in the enabling Act have not been followed e.g., the Aylesbury Mushroom Case (1972).

Definition - Substantive Ultra Vires

Substantive Ultra Vires is the delegated body has made law not authorised by the enabling Act (excess of power) or made law not intended by the Act (abuse of power) or has acted irrationally/unreasonably. If the delegated legislation is ultra vires, it is void and ceases to exist. The delegated body must redraft the law e.g., R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000).

Explain the Difference between substantive and procedural ultra vires

Ultra vires literally means, 'beyond powers. ' Ultra vires has two meanings: (1) substantive ultra vires where a decision has been reached outside the powers conferred on the decision taker; and (2) procedural ultra vires where the prescribed procedures have not been properly complied with

Give 3 advantages of delegated legislation.

1. Delegated legislation is useful because it saves Parliamentary time. Parliament doesn’t have time to consider and debate every small detail of complex regulations. 2. It can be more detailed benefiting from expert input. It is impossible for members of parliament to have all the knowledge needed to draw up laws on complex areas. 3. Ministers have the benefit of further consultation before regulations are drawn up which is particularly beneficial for technical regulations. 4. The process of passing an Act of Parliament can take considerable time whereas delegated legislation can be passed more quickly. 5. Delegated legislation can be amended or revoked easily when necessary, so that the law can be kept up to date e.g. updating the minimum wage each year.

Give 3 disadvantages of delegated legislation.

Disadvantages Delegated legislation is deemed undemocratic because it takes law making away from the democratically elected House of Commons and allows unelected people make law. Law making authority is often sub-delegated down to another level. There are often comments that most of our law is made by civil servants with ministers just rubber stamping it. There is a large volume of delegated legislation which makes it difficult to discover what the law is and this is aggravated by the lack of publicity as the laws are made in private. Just like Acts of Parliament delegated legislation suffers from obscure and complicated wording making the law difficult to understand.

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