Delegated legislation Flashcards
DL definition
A law made by a person or body to whom Parliament has delegated law-making powers. P passes an Enabling/Parent Act to delegate the authority of law making which has T&C set out within the Act. if they are not followed, any laws made can be declared Ultra Vires.
what is the Enabling/Parent Act
The authority within an act for a specific body or person to make further more detailed law
what are the three types of DL
bye laws - local effect
statutory instruments -national effect
orders in council - national effect
def of byelaws
made by local councils and other public bodies to deal with matters which affect local areas
def of statutory instruments
regulations made by the Government that affect the whole country. - The Dangerous Dog Act 1991
def of orders in council
laws passed by the Privy Council usually in times of Emergencies under the Emergency Power Act 1920 and needs permission from the king - e.g Wartimes
What are the pre-emptive controls of DL
The Enabling Act sets the parameters of DL so can be quite restrictive. The Delegated Powers and Regulatory Reform Committee also checks to ensure the Enabling Act has sufficient control and hasn’t given away too much power.
What are controls of DL during the creation
Affirmative Resolution - DL cannot become law unless Parliament agrees
Negative Resolution - statutory instruments must be laid before Parliament for 40 days and can be objected to. a vote must then happen to pass it
Super Affirmative Resolution - gives Parliament control to amend DL made under the Legislative and Regulatory Reform Act 2006
Controls of the Courts after DL has been made and is in effect
This is known as Judical Review and takes place in the QBD. It is initiated by someone who has been affected by a piece of DL after it has been made. If this is seen to be successful the courts may declare the DL to be ultra vies (beyond powers) and the DL now becomes void
what are the three types of ultra vires
Procedural UV
Substantive UV
Wednesbury Unreasonableness
what is procedural UV
any procedures set out in the Enabling Act for making Statutory Instruments were not followed (e.g having no consultation) - Aylesbury Mushrooms
what is substantive UV
where the DL goes beyond what P intended - DPP v Hutchinson
what is wednesbury unreasonableness
it is not the same as UV but where the DL has been made and followed within the powers and procedures but it is “manifestly unjust and perverse” - Strickland v Hayes Borough
what are the 3 prerogative orders
Certiorari
Mandamus
Prohibition
what is Certiorari
it is a quashing order where it cancels decisions of public authorities where there has been an UV decision/ error in laws
what is Mandamus
it is a mandatory order from the High Court commanding a public authority to preform a public duty
what is Prohibition
it is a prohibiting order issued primarily to prevent a public authority from exceeding its jurisdiction
what are advantages and disadvantages of DL
+
time - p doesn’t have time to debate and pass all laws needed to run the country
speed - its quicker to introduce a piece of DL than a full Act
expertise - DL is made by specialised government departments who have expertise in relevant fields
-
lack of control - many SI are passed with negative resolutions procedures which loose control of DL.
undemocratic - DL is made by unelected individuals and it is argued laws should be made by those elected to do so
