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
Judicial review: Procedural ultra vires
The delegated legislation has not followed the correct procedure as set out in the parent Act
For example, The Aylesbury Mushroom Case
The parent Act stated that the minister had to consult affected parties before creating the statutory instrument
However, he did not consult the Mushroom Growers’ Association which represented about 85% of mushroom growers and so he had not followed the correct procedure
Controls by the courts: Judicial review
Judicial review is a type of court proceeding where a judge reviews the lawfulness of the delegated legislation
The person challenging it must have sufficient legal standing
It will be challenged on the basis that is is ultra vires
This means that it has gone beyond the powers given by Parliament in the parent Act
If it is ultra vires then the delegated legislation is invalid
Delegated legislation may be ultra vires for several reasons
judicial review: Substantive ultra vires
It has gone beyond the powers allowed in the parent Act
Basically, the person making the delegated legislation has done something that they are not allowed to do
For example, R v Home Secretary ex parte Fire Brigades Union (1995)
In this case the Home Secretary made changes to the Criminal Injuries Compensation Scheme and it was determined that this went beyond the powers given in the Criminal Justice Act 1988
Control by the courts: Evaluation
Judicial review allows ordinary citizens to take action
However, they have to have sufficient legal standing
It is also expensive to bring a claim of judicial review
Judicial review upholds the separation of powers as the courts can check on the executive, which is good
Quashing the delegated legislation is powerful and useful for relevant citizens
However, the courts cannot fix the problem- they have to just remove it entirely
