Delegated Legislation Flashcards
What does the word ‘delegate’ mean?
To pass power, responsibility or authority to another person or body
What is Delegated Legislation?
Law made by a person or body to whom Parliament has given law-making power
How do Parliament delegate powers?
Through the framework of the Enabling/Parent Act
What does the Enabling Act do?
Sets out the limits, how broad the new law created by DL can be.
Sets out who power is being delegated to, e.g. which minister can make the law.
What are the two DL controls Parliament implements?
Affirmative resolutions
Negative resolutions
What are Affirmative Resolutions?
WHERE:
SI won’t become law unless specifically approved by Parliament.
Very rarely necessary.
E.G. required before new or revised codes of police practice can come into force under the Police and Criminal Evidence Act 1984
What are Negative Resolutions?
WHERE:
SI will become law unless rejected by parliament within 40 days.
This is the process for most SIs.
What are the 4 reasons why Delegated Legislation is used?
Detailed law- saves Parliament time
Expert knowledge- Parliament cannot be experts in all areas
Local knowledge- Local councils know their own areas
Consultation- Some laws are very technical; ministers will take time to consult with relevant bodies
What are some problems the Scrutiny Committee may identify?
The DL raises a tax or charge.
It appears to have retrospective effect.
It appears to have gone beyond the powers provided for in the enabling Act.
How can DL be challenged against in court?
Challenged through the judicial review procedure or it may arise in a civil claim between two parties.
What are the 2 reasons for challenging DL/that DL is void?
DL= ‘Ultra Vires’
Correct procedure has not been followed
What is ‘Ultra Vires’?
Means DL goes beyond the powers set in the enabling Act.
What is a case example for ‘Ultra Vires’, what happened?
R (Rogers) v Swindon NHS Trust NHS:
DL= Unreasonable.
NHS trust refused to provide a woman with a breast cancer drug even though it had provided it for other women in the area.
What is a Case Example for when Correct Procedure has not been followed in DL, what happened?
Aylesbury Mushroom case.
Minister for Labour didn’t consult organisation which represented a substantial number of people engaged in activity.
How is DL regulated within Parliament?
Individual MPs will be questioned by others in Parliament about the work of their departments.
Scrutiny Committee: reviews all SIs and will report back if there are any technical problems.
What are the three types of DL?
- Order in Council
- By-laws
- Statutory Instruments
Who are Orders in Council made by?
By the King and the Privy Council.
What is Orders in Council used for?
- Transferring responsibility between government departments;
- Giving effect to EU Directives;
- Making law in times of national emergency under the Civil Contingency Act 2004
- Amending or updating existing laws.
Who makes By-Laws + how?
By local councils and public corporations to cover matters within their own area.
Why are By-Laws made?
Made in response to local problems e.g.: parking.
Can also be made by public corporations and certain companies for matters within their jurisdiction.
EG. British Airports Authority can enforce rules about public behaviour on their premises.
What are Statutory Instruments?
Rules and Regulations made by government ministers for their area of responsibility.
Vary in length, can be as short as one point.
EG: police codes of practice in relation to stop and search made by the Minister for Justice.
What are 5 advantages of DL + what do they mean?
1) SAVES PARLIAMENTARY TIME
Parliament doesn’t have time to consider and debate every small detail of regulations.
2) NEEDS TECHNICAL EXPERTISE
Legislation required complex technical knowledge which Parliament might not have.
EG: Local matters such as parking need local knowledge.
3) ALLOWS CONSULTATION
Consultation = particularly important for rules on technical matters where it is important to make sure that any regulations are workable.
4) ALLOWS QUICK LAW-MAKING
Delegated legislation, Orders in Council in particular, can be very quick to make.
OiC can be made when Parliament is not sitting, good for terrorist threats.
5) EASY TO AMMEND
Law can be kept up to date.
Useful where monetary limits need to change each year, as with the minimum wage.
Ministers can respond to unforeseen challenges through SIs.
What are 4 disadvantages of DL + what do they mean?
1) UNDEMOCRATIC
Takes law-making away from the House of Commons.
2) SUB-DELEGATION
Law making authority might be handed down another level by the minister in charge.
Much of our law is made by civil servants.
3) LARGE VOLUME
Can be difficult to find out what the law is.
Delegated legislation is not normally openly debated by Parliament so lack of publicity.
4) DIFFICULT WORDING
Shares the problem with Parliament of difficult wording.
Hard to understand.
