delegated legislation Flashcards
delegated legislation
law made by some person or body other than parliament but with the authority of parliament
parenting/enabling act
enabling act creates the framework for the law and then delegates the power to others to add the detail
types of delegated legislation
orders in council - privy council
statutory instruments - government minister
by laws - local authorities
orders in council
made by privy council
- prime minster/leading members of government
- gov can make laws without needing the whole of parliament
allows them to:
give legal effect to EU directives
transfer responsibility between departments
bringing acts of parliament into force
allows them to have:
power to make laws in emergency situations
make orders in council on particular topics
can make a range of laws
case
misuse of drugs act 1971 altered in 2003 to move cannabis to class C, repealed to class B again
statutory instruments
rules and regulations made by government minsters within their department
can be short - changing minimum wage
can be long containing more detail that any normal act of parliament
over 3000 made a year
by laws
local authorities
county council - laws affecting whole council
district/town council - make laws for local area
by laws can also be made by public coperations and certain companies which involve the public
control of delegated legislation
DL can be made by unelected bodies
must be tightly controlled
control through parliament and the courts
public enquiries often happen before a law is passed on sensitive matters such as planning on laws that may affect the environment
control by parliament
enabling act
- parliament has control and only delegates certain powers
details:
- which government minsters can make regulations
- states the type of law
>whole country or certain areas
parliament can repeal powers at any time
delegated powers scrutiny committee
H of L role
check when parliament wants to make a new law to delegate powers that it is appropriate
reports findings to H of L before committee stage
checks made to ensure powers aren’t being abused:
- affirmative resolution
- negative resolution
- scrutiny committee
- special controls under the legislative and regulatory reform act 2006
- affirmative resolution
effects small number of statutory instruments
won’t become a law until specifically approved by parliament
affirmative resolution
disadvantage
can’t amend anything
only approve, annual, or withdraw
- negative resolution
effects most statutory instruments
statutory instruments will become law unless rejected by parliament within 40 days
negative resolution
disadvantage
very few looked at
- scrutiny committee
effective check but no power to alter any statutory instrument
reviews all of them and will highlight concerns to both housess
scrutiny committee
disadvantages
technical review not policy based
make objections on:
imposes tax charge
retrospective effective
gone beyond powers given
unusual/unexpected use of these powers
unclear or defective in some way
- special controls under the legislative and regulatory reform act 2006
sets out procedure for repealing an existing law in order to remove a ‘burden’, this means:
financial cost
administrative inconvenience
Obstacle to productivity or profitability
Sanction, criminal or otherwise which affects the carrying on of any lawful activity
Any minster making a statutory instrument under this act must consult:
Organisations effected by proposals
Devolved assemblies
Law commission
Orders made under this act have to go before parliament by:
Negative resolution
Affirmative resolution procedure
Super affirmative resolution procedures
Control by the courts/judicial controls
DL can be challenged in the courts on the grounds that it is ultra vires
If it is found to be this then the DL is void
Courts will assume that unless the enabling act specifically for it, then there is no power to:
Make unreasonable regulations
Levy taxes
Allow sub delegation
ultra vires
Can be ultra vires if correct procedure isn’t done
Aylesbury mushroom case 2012
Can also be void if the conflict with EU resolution
ultra vires
advantages
Saves parliaments time
Allows for technical expertise to be used to fill in the details of a delegated legislation
Allows consultation
Allows quick law making
Easy to amend
ultra vires
disadvantages
Takes law away from the democratically elected body and gives it to non elected people to make law
Sub delegation
Large amount of delegated legislation means it can be difficult to discover what the present law is
Difficult and complex wording makes it difficult to understand
