Delegated Legislation Flashcards
delegated legislation for 8 and 12 markers
What does it mean to Delegate?
to hand over power/responsibility for certain tasks to someone else
How is parliaments law making power delegated?
through passing an enabiling act or a parent act
Why is delegated legislation needed, 5 reasons?
- parl don’t have time to consider and debate every detail of complicated regulations
- parl don’t have technical expertise
- local council can deal w issues that are of concern to them n use by laws to regulate behaviour locally
- easily amended
- parl may not be able to pass law quickly bc of lengthy process
Define delegated legislation
law made by some person or body other than parliament but with the authority of parliament. creates framework of law n then delegates power to others to make more detailed law in the area.
What are orders in council?
made by the monarch n privy council, allows gov to make laws w/o having to be debated on in parl.
What are orders in council used for? 4 uses
- emergencies (times of war/ petrol regulating times)
- Transferring powers betw gov departments ( powers of dept of constitutional affairs n home office were transferred to ministry of justice)
- making eu directives in to law ( eu withdrawal act 2018)
- amending some type of law e.g classification of drugs ( misuse of drugs act 1971- downgrade cannabis to a class c drug)
List 5 facts about statutory instruments
- made by gov ministers (eg minister for work n pensions)
- must be approved by parl
- come in the form of orders. regulation, rules, codes
- apply nationally
5.used to amend or update provisions in existing primary legislation (eg national minimum wage (amendment) regulations (2018) allowed by nat min wage act 1988.
How many s.i’s have been made from 2010 to june 2019/
avg of 3,000
Examples of a statutory instrument
1.Chemical regulations 2009
2.Coronavirus regulations 2020-2021
Whats a by-law/ who n why
made by local gov n public corporations. deals with local, community matters.
What act were by-laws created under?
local government (miscellaneous provisions) Act 1982- gives councils permission to create these laws.
What needs to happen to new by-laws? 4 things
- must be confirmed(approved by relevant minister)
- don’t have to be approved by parl
3.notice n publication in local press is requires n copies must be available for inspection at local authority offices - limited to a specific geographical area
An example of a local authority by-law?
the clean neighbourhoods and environment act(2005)- delegates power to local councils to designate “poop scoop areas.
An example of a public corporation by-law?
The Transport Act (2000)- delegates powers to strategic railway Authority to make railway by-laws.
4 Advantages of Del leg n cases?
Quick
uses knowledge n expertise
saves parliamentary time
flexible
4 Disadvantages of del leg n cases?
undemocratic(privy council)
unscrutinised(lack of effective control)
overused
could cost if we need to challenge
What are the court controls over del leg?
Judicial Review
Procedural ultra vires
substantive ultra vires
unreasonable ultra vires
what are the parliamentary controls over del leg?
enabling act, resolution procedures, scrutiny committees
Define each of the 4 court controls
judicial review- process that anyone can challenge a piece of del leg. In these cases judges consider whether the gov have acted within the law(used powers legally). eg. r (miller) v the Prime ministers
procedural uv’s- procedures requires under the legislation haven’t been followed e.g. consulting. case: Aylesbury Mushrooms(1972)
substantive uv’s- the body made a law in a field they weren’t allowed to or created tax? used powers given to them for another reason. e.g R v Home Secretary ex parte Fire Brigades Union.
unreasonable ultra vires- the body made a law so unreasonable no other body would make it. eg. Strickland v Hayes
Inconsistency w the human rights act- where a delegated body has used their legislative power in a way which is inconsistent w the human rights act(1998)
Whats an advantage and disadvantage of judicial review?
+ anyone affected by DL can ask for a judicial review
-its expensive to take court proceedings and the judicial review process isn’t widely understood.
Advantage and disadvantage of the doctrine of ultra vires?
+ courts can declare delegated legislation’s void
- can normally only do this if the correct procedure hasnt been followed or the del leg goes beyond the power given.
Define the parliamentary controls controls on del leg
enabling act- details the nature of the power e.g PACE 1984 allows the Home Office to make chnges to the police codes of practice.
resolution procedures- for approval of s.i’s by parl
negative- any si will become law unless an mp objects n asks for a vote. it becomes law unless parl rejects it within 40 days
affirmative- si must be approved by parl n both houses must vote in favour
scrutiny commitees- watch over and report issues to parl. e,g Joint committee on statutory instruments- main scrutiny committee that ensures si’s don’t do certain things
When can a scrutiny committee refer s.i back to parliament? 5 reasons
- it imposes a tax charge
- it appears to have retrospective effect which wasn’t provided for by Enabling Act.
- appears to have gone beyond the powers given under the enabling legislation
- makes some unusual/ unexpected use of those powers
- Unclear/defective in some way.
