Delegated Legislation Flashcards
Delegated legislation
Law made by some person or body other than Parliament, but with the same authority.
The 3 types of delegated legislation
From the Parliament Passes Enabling Act 4 which lets persons/bodies gain the right to make one of 3 legislations:
- Order in Council
- Statutory instrument
- By-law
Order in council
Made by the Privy Council under the monarch’s name.
Order in council - examples
- Misuse of Drug Act 1971
- Constitutional Reform Act 2005
Statutory instrument
Made by a Government mandate.
Statutory instrument - example
- Building Regulations Act 2010
By-law
Made by a local authority.
By-law - examples
- Traffic laws
- British Airport Authority rules
Parliment’s control over the Enabling Act
By using:
- initial control over what powers are delegated
- having to consolt other powers before making regulations
- being able to repel powers at anytime
Parliment control - the Delegated Powers Scrutiny Committee
They consider if powers given are delegated innapropiatley, and checks on delegated legislation.
The Delegated Powers Scrutiny Committee - steps
- Affirmitive resolution
- Negative resolution
- Questioning of Government ministers
- Joint Select Committee on Statutory Instruments
The Delegated Powers Scrutiny Committee - Affirmitive resolution
Statutory instrument will not become law unless approved by Parliament.
The Delegated Powers Scrutiny Committee - Negative resolution
The relevant instruments will be law unless rejected by Parliament within 40 days.
The Delegated Powers Scrutiny Committee - Questioning of Government Ministers
Ministers may be questioned by MPs in Parliament on the work of their departments.
The Delegated Powers Scrutiny Committee - Joint Select Committee on Statutory Instruments
Reviews all instruments and sometimes draws attention of the houses to points that need further consideration.
Ultra vires
Where it goes beyond the powers that Parliament granted in the Enabling Act.
Delegated legislation and ultra vires
Where any delegated legislation is ultra vires, it is not valid law. Validity may be challenged through Judical review procedures or if ruled to be ultra vires, void and not effective.
Delegated legislation and ultra vires - case
R v Home Secretary, ex parte Fire Brigades Union 1995
Limit to powers
Unless an Enabling Act expressly allows it, there is no power to do:
- make unreasonable regulations
- levy taxes
- allow sub-delegation
Limit to powers - make unreasonable regulations
Strickland v Hayes Borough Council 1896 - attempted to ban singing/reciting any obscure song/ballad and general use of obscene language, this was considered ultra vires, as it was too widely drawn and covered acts done in private aswell.
Limit to powers - Levy tax
The amount of money charged as taxation on particular assets or goods, delegated legislation cannot grant this.
Limit to powers - allow sub-delegation
It is also possible for courts to hold that delegated legislation is ultra vires if the correct procedures haven’t been followed.
Limit to powers - allow sub-delegation - cases
Aylesbury mushroom case (1972) - failure to consult the Mushroom Grower’s Association (represented 85% of all mushroom growers).
Secretary of State for Education and Employment, ex parte National Union of teachers (2000) - only 4 days were allowed for consultation, makiing it unfair and rushed.
Reasons for use of delegated legislation
There is a need for:
- detailed law
- expert knowledge
- local knowledge
- consultation
