Delegated Legislation Flashcards
What is Delegated Legislation?
A secondary (subordinate) legislation and is law made by something other than parliament but with the authority of parliament
How is the authority to make DL often granted?
Through the use of Parent/Enabling Acts
Reasons for DL:
Saves time
Deals with complex issues
Quick to amend/flexibility
Allows a fast legislative response
It allows for local needs and concerns to be met
What is a Parent/Enabling Act?
This allows a non-parliament body to hold the power to make law as parliament does. This act sets out the mere framework of the law and then delegates power to other to make more detailed law in that area
What are the 3 types of DL?
Bylaws
Orders in Council
Statutory Instruments
Bylaws
These are made by local authorities who are granted the power by the Local Government Act/ Acts of Parliament. Bylaws have a local affect unless made by a railway, for example, in which case it applies on their premises. An example could be the Local government Act [1972] which allows local authorities to make their own rules on certain issues in that area.
Orders in Council
These are made by the Monarch and the Privy Council due to the Monarch’s constitutional powers. The affect these acts have is often national but it can depend on the nature of the act. An example of this could be the Civil Contingency Act [2004]
Statutory Instruments
These are made by Government Ministers who are given the authority to make regulations areas of their particular responsibility. These have a national affect. An example of this could be the Dangerous Dogs Order [2023]
Advantages of DL:
Saves limited time in Parliament
Allows rapid change
MP’s lack detailed technical knowledge
Quick responses to new developments
Enables minor changes to statutes
Judicial review may be sought by parties with Locus Standi (Person sufficiently affected by the legislation) so time isn’t wasted by Parliament considering them all
Disadvantages of DL:
Implies that Parliament has insufficient time to scrutinise it. Parliament is not reviewing legislation properly
Sub-delegation of powers is a further problem which causes complexity and confusion
Sheer Volume causes complexity
Lack of Publicity
It is undemocratic as most regulations are made by a civil servant or other unelected people.
Who do the controls on DL fall to?
Parliament
Courts
Controls by Parliament
This is done BEFORE the law is in place and comes in the following forms:
The parent/enabling act
Negative resolution procedure
Affirmative resolution procedure
Scrutiny Committees
What is a Negative resolution Order?
The SI is put before parliament and it must stay there for 40 days with no objection to become law
What is an Affirmative resolution Order?
Parliament is required to vote on the DL put before them on a given date
What are Scrutiny Committees?
The Joint Select Committee on Statutory Instruments (JSCSI) - scrutinises the Delegated Legislation
The House of Lords Delegated Powers Scrutiny Committee (HoLDPSC) - scrutinises the parent act
Court/Judicial Controls
These are used once the DL is in force. This is performed by the Administrative Court which a part of the King’s Bench Division of the High Courts
What does Ultra Vires mean?
Beyond the Powers
What are the 4 main Judicial Controls?
Procedural Ultra Vires
Substantive Ultra Vires
Substantive Ultra Vires for unreasonableness
Inconsistency with the Human Rights Act [1998]
Procedural Ultra Vires
A piece of DL may be declared invalid if the correct procedure was not followed
Agricultural Training Board v Aylesbury Mushrooms [1972] - This minister did not consult the mushroom grower’s association who were a relevant body in this matter
Substantive Ultra Vires
The person making the DL exceeded the power of the court
R v Secretary State for Health, ex parte Pfizer Ltd [1999] - Pfizer believed the SoSH’s circular was unlawful
Substantive Ultra Vires for unreasonableness
Where the regualtions made are unreasonable
Strickland v Hayes - Worcesteshire CC made it illegal to sing or say any profane language in public
Inconsistency with the Human Rights Act [1998]
Simply when the DL is not consistent with the HRA [1998]
R (Bono) v Harlow DC [2002] - Claimant suggested that the proper regulations were not met and therefore his rights under the act were breached
