delegated legislation Flashcards
what is delegated legislation
law that is made by a body other than parliament known as secondary legislation
how is delegated legislation made
The power to make delegated legislation set out in a parent act which is made by Parliament
creates the framework of the law and delegates powers to others to make more detailed law.
Statutory instruments
This type of delegated legislation is made by government ministers can be short and only cover 1 point
, such as making the annual change to minimum wage (under the parent Act National Minimum Wage Act 1988)
complex and long statutory instruments
These contain way too much detail to have been included in an Act of Parliament
For example, the Police Codes of Practice (parent Act Police and Criminal Evidence Act 1984)
how many statutory instruments are made each year
There are approximately 3,000 made each year
However, (as of July 2021) the government has laid 477 Coronavirus-related statutory instruments since January 2020
This accounts for 31% of all statutory instruments
by laws
These can be made by local authorities to cover matters within their own area
For example, Darlington Borough Council can make by laws about Darlington
The Local Government Act 1972 allows councils to make by-laws for the ‘good rule and governance’ of their particular area of control
who else can bylaws be made by
public corporations and non governmental departments for matters within their jurisdiction that involve the public
For example, the Strategic Rail Authority make by laws regarding public behaviour on trains and in train stations
orders in council
These are made by the Queen and the Privy Council
This effectively allows the government to make laws without going through Parliament
They can make Orders in Council for a wide range of matters, including…
Amend and update existing law e.g. changing cannabis from Class C to Class B (parent Act Misuse of Drugs Act 1971)
why do we need DL
Parliament lacks the time and expertise to make many detailed rules and regulations. In addition, it lacks local knowledge of the particular issues that may face a particular area.
It is better that the power to make these laws is delegated to those better suited to making such law. Parliament can pass the basic laws and framework and the detail can be filled in by others.
Delegated legislation is quicker and easier to make.
controls on DL
As delegated legislation is made by bodies other than our elected Parliament, we have to keep an eye on what they are doing
Parliament has control over delegated legislation, So do the courts
what are the controls set by parliment
Parliament has initial control over delegated legislation as they pass the parent Act which delegates the powers
The parent Act also sets out which body or government minister can make the regulations
It sets out where the law will then apply to e.g. whole country or only for certain places
It sets out whether there must be consultation before making the delegated legislation
Also, it can repeal the parent Act and remove the powers
Parent Act: evaluation
Ultimately this upholds Parliamentary supremacy
Parliament has the power to delegate, to amend the powers, and to repeal the powers
However, if this is drawn too wide then it can give too much power to others, which can make it difficult to bring judicial review proceedings
If it is too wide then it can give too much power to the executive, contrary to the separation of powers
controls by Parliament: Affirmative resolution procedures
The type of resolution procedure that a statutory instrument is subjected to is set out in the parent Act
Affirmative resolution procedure applies to a small number of statutory instruments
The statutory instrument is laid before Parliament, and it must be approved by both Houses with 40 days otherwise it does not become law
This is used with the Police Codes of Practice
Parliament cannot change the statutory instrument
Affirmative resolution procedures: evaluation
This allows Parliament to debate and vote on statutory instruments
Upholds Parliamentary supremacy
Allows for proper scrutiny of statutory instruments
However, this is time consuming
Also, very few statutory instruments are actually subjected to the affirmative resolution procedure
Control by Parliament: Negative resolution procedure
Most statutory instruments are subjected to the negative resolution procedure
These statutory instruments are laid before Parliament, and they become law unless they are rejected within 40 days
When they are laid before Parliament they usually haven’t come into effect yet
There is a convention that a statutory instrument should not come into effect until 21 days after it has been laid
As of July 2021, 56.3% of coronavirus statutory instruments have breached this convention
