Delegated Legislation Flashcards
Delegated legislation
Laws or rules written outside parliament when a person or body has been given the authority by parliament to make those rules/laws
Enabling act
A law passed by parliament which gives a person or body the authority to make laws
Types of delegated legislation
Orders in council, statutory instruments, by laws
Orders in council
Can be used to bring an act into force, dissolve parliament or reorganise responsibilities of government departments. Made by the king acting on behalf of the privy council.
Statutory instruments
A piece of legislation created by the government minister under the authority of the enabling act
By laws
Can be made by local authorities to cover matters in their own area
Controls by parliament
Approval of the parent act/enabling act, negative resolution procedure, affirmative resolution procedure, scrutiny by committee
The enabling act
Parliament controls delegated legislation by passing an enabling act that must be followed. Limits power of the people who make delegated legislation by stating what can/cannot be done
The negative resolution
Most statutory instruments will be subjected to negative resolution. Statutory instruments will become law unless rejected by parliament within 40 days
The affirmative resolution
A small number of statutory instruments are subject to this-not become law until it has been specifically approved by parliament
Scrutiny committee
These bodies are an effective check on statutory instruments and are created to review: the joint committee on statutory committee, the secondary legislative scrutiny committee in the HOL.
Effectiveness of parliamentary controls
Act as a check-not enough to check all, by laws deal with local issues-better use of time, committee role report back to parliament-effective control, affirmative procedure requires debate-time consuming
Effectiveness of affirmative solution
+allows a debate of the proposed legislation so issues can be fully considered
-takes up parliaments time, government with a majority will usually win a vote
Effectiveness of negative solution
+quick so doesn’t use up parliaments time, if objections are raised there can still be a debate
-limited effect as is no requirement for MPs to look at SI,most of which become law without scrutiny
Effectiveness of scrutiny committee
+many SI subject to some scrutiny via one of the committees
-impossible to scrutinise all 3,000 SI passed each year. Cannot amend a SI as can only report back to parliament and may be ignored.
Controls by the court
Judicial review, procedural ultra vires, substantive ultra vires, wednesbury unreasonableness
Judicial review
The courts can control delegated through the doctrine of judicial review
Procedural ultra vires
It is ultra vires because the correct procedure in the enabling act has not been followed
Substantive ultra vires
This is when a rule making body has no substantive power under the empowering act to make the rules in question
Wednesbury unreasonableness
This is when a decision is so unreasonable that no reasonable body would ever consider imposing it
Effectiveness of the controls by the courts
If legislation is ultra vires-struck. Down by court, ensures laws created in accordance with parliaments instructions, courts cannot amend legislation-only declare it void, judicial review can only take place if case comes before court-people may not be able to fund court fees
Reasons for delegated legslation
Parliament doesn’t have necessary expertise, parliament doesn’t have time, by laws deal with local issues, may not need to introduce laws quickly, can mend/revoke easily than primary legislation
Advantages of delegated legislation
Time saving, flexible, speed, expertise
Disadvantages of delegated legislation
Sub delegation, takes law making away from democratically elected HOC and allows none elected people to make laws, large volume, delegated legislation shares acts of parliament-same problems such as wording led to difficulty interpreting it
