Delegated Legislation Flashcards
Definition and three types of DL
Law made by some person or body other than Parliament, but with the same authority as an AoP as a result of an Enabling/Parliament Act
Orders In Council
Statutory Instruments
Bylaws
Why DL is needed
Detailed law, expert knowledge, local knowledge, consultation, saves parliamentary time
Orders In Council
Made by the monarch and Privy Councils
Allows gov to make laws without going through Parl
Used in:
Emergencies (e.g. order to ban storage of petrol in the petrol crisis 2000)
Transferring powers between gov departments (e.g. powers of Dept of Constitutional Affairs and some powers of Home Office transferred to new Ministry of Justice when made)
Amending some types of law (e.g. The Misuse of Drugs Act 1971 (Amendment) Order 2008)
Statutory Instruments
Made by gov ministers
Must be approved by Parl before becoming law
Apply nationally
Used to amend or update provisions in existing primary legislation
e.g. Minister for Work and Pensions make an annual change to minimum wage allowed by the National Minimum Wage Act
Approx 3,000 made a year
e.g. Building Regulations 2010
Bylaws
Made by local authorities or puplic corporations to enforce laws within a district or town
New bylaws must be approved by the relevant minister but don’t require approval from parliament
Local bylaws often invovle traffic control (parking restricitons) or banning the drinking of alcohol in public places
Public corporation bylaws include bodies such as the British Airport Authority who can enforce rules about public behaviour on their premesis.
Evaluation: Advantages of DL
Saves parliamentary time
Acess to technical expertise
Allows consultation
Allows quick law making
Easy to amend e.g. changing minimum wage
Evaluation: Disadvantages of DL
Undemocratic (other than bylaws as local authorities are elected bodies)
Sub-delegation-law making handed down a level which prompts crticism that laws are made by civil servants and merely ‘rubber stamped’ by gov ministers
Large volume and lack of publicity- difficult to discover present law
Parliamentary Controls
Parent/Enabling Acts
Affirmative Resolution Procedure
Negative Resolution Procedure
Scrutiny Comittee
Judicial Controls
Judicial review -decisions can be challenged on the grounds of ultra vires
Parent/Enabling Acts
Outline powers given to the law making body. States which gov ministers can make regulations, which type of laws that can be made, where they can be made and who must be consulted before the law can be created.
Affirmative Resolution Procedure
Law must be approved by both houses before enforcement. If ARP is required, it will be stated in the enabling Act. Parl cannot ammend the legislation. They can only approve or reject it.
Negative Resolution Procedure
How most statutory instruments are approved. SI will become law unless it is rejected by parliament within 40 days of publication. Many SIs are produced each year so they cannot all be examined.
Scrutiny Committee
Committees can only check legislation once it has become legislation. There are only limited grounds for reporting SI to parliament.
JC: Procedural Ultra Vires
Legislation not followed procedure set out in Enabling Act e.g. in Aylesbury Mushroom Case where the relevant bodies weren’t consulted so was ruled as procedural ultra vires
JC: Substantial Ultra Vires
The body has no power to make the rules in question e.g. in Home Secretary ex patre Fire Brigade Union where changes were made that went beyond the powers given in the Criminal Justice Act 1988
