Delegated Legislation * Flashcards
What is delegated legislation (DL)?
When Parliament pass down some of their law making power to other bodies
This is done through an Enabling Act such as the Police and Criminal Evidence Act (PACE) 1984.
What are orders in council?
A type of delegated legislation made by the monarch and their Privy council
Used to amend old laws, transfer power between Government departments, and respond to emergencies when Parliament are not sitting.
What is the purpose of orders in council?
To amend old laws, transfer power, and respond to emergencies
An example is the Misuse of Drugs Act 1971 Amendment Order 2008.
Give an example of an order in council.
Misuse of Drugs Act 1971 Amendment Order 2008
This order re-classified cannabis from a class C drug to a class B drug.
What are by-laws?
Laws made by local councils or large public bodies
They apply only to the area under the control of the council/public body.
What is an example of a by-law?
A smoking ban created by the London Underground
This by-law applies only to the London Underground.
What are statutory instruments (SIs)?
Laws made by government departments and ministers about their area of expertise
Roughly 3000 of these are made a year and they apply nationally.
Give an example of a statutory instrument.
Police Code of Practice under PACE
The Minister of Justice can create rules about stop and search, arrest, etc.
How many statutory instruments are made each year?
Roughly 3000
These apply nationally.
True or False: By-laws apply to the entire country.
False
By-laws apply only to the specific area under the control of the council or public body.
Fill in the blank: Delegated legislation is done through an _______.
Enabling Act
An example of an Enabling Act is the Police and Criminal Evidence Act (PACE) 1984.
What is the role of the Enabling Act in delegated legislation?
It allows Parliament to decide who can make law, how they make this law, and what they can make law about.
The Enabling Act can also be repealed by Parliament to withdraw the power of delegated legislation.
What are the two procedures through which statutory instruments (SIs) can be controlled?
Negative resolution procedure and affirmative resolution procedure.
The specific procedure is determined by the Enabling Act.
How does the negative resolution procedure work?
The SI remains law unless Parliament rejects it within 40 days.
This procedure is more common than the affirmative resolution procedure.
What is required for an affirmative resolution to take effect?
Parliament must approve the SI before it becomes law.
This procedure usually applies to significant aspects of delegated legislation.
What can the Joint Select Committee do regarding statutory instruments?
Refer SIs to Parliament if they are retrospective, exceed the Enabling Act, or use powers unusually.
The Committee cannot alter SIs themselves.
What is judicial review in the context of delegated legislation?
It is when someone with ‘standing’ asks the King’s Bench Divisional Court to declare that DL is ‘ultra vires’ and void.
‘Ultra vires’ means beyond the powers granted in the Enabling Act.
Give an example of delegated legislation being declared ultra vires.
R v Home Secretary ex parte Fire Brigades Union.
This case involved changing the compensation scheme beyond the powers granted.
What is an example of improper procedure leading to ultra vires?
ATB v Aylesbury Mushrooms.
The case involved not consulting the mushroom growers association.
What can lead to a delegated legislation being considered unreasonable?
Providing different medical treatment to individuals with the same illness.
This was illustrated in the case R (Rogers) v Swindon NHS Trust.
True or False: Parliament can only control delegated legislation reactively.
False.
Controls are mostly proactive, requiring foresight from Parliament.
What happens if Parliament does not approve of a statutory instrument under the affirmative resolution procedure?
Parliament can reject the SI.
This is a key difference from the negative resolution procedure.
