Delegated Legislation Flashcards
Laws are created by…
Parliament : Act of Parliament/ statute/ legislation
Judges : judicial precedent/ case law/ common law
Delegated legislation : other bodies given authority by Parliament
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
This works by Parliament setting out an ‘Enabling Act’
Reasons for Delegated Legislation
Parliament does not have necessary experience
May need to introduce laws quickly
Parliament doesn’t have time
By laws deal with local issues
DL can amend / revoke easier than primary legislation
Delegated Legislation
Parliament
↓
Enabling Act
↓
•Statutory instruments
•By-Laws
•Orders in Council
Enabling Act
A law passed by Parliament which gives a person or body the authority to make laws
Sets out the framework of the law and delegates authority to others to make more detailed law in the area
Specifies Who can make the law , in What areas and the Procedure that must be followed
Gives powers to make codes of practice for the use of Police Powers (The Police and Criminal Evidence Act 1984)
Types of Delegated Legislation
Orders in council
Statutory instruments
By Laws
Orders in Council
Can be used to bring an Act into force— a “Commencement Order” ,to dissolve Parliament or to reorganise responsibilities of government departments
Can be made on a wide range of matters :
-Transferring responsibility between government
-Bringing Acts / parts of Acts together
-Make laws in emergencies under (The Civil Contingencies Act 2004)
Made by the King acting on behalf of the Privy Council
Can also be used to make other types of law — updated Cannabis to a Class B drug under the Enabling Act of (The Misue of Drugs Act 1971)
What can the King and Privy council do?
The King and the Privy Council have the authority to make orders in council which effectively allows the government to make legislation without it having to be voted / debated on by Parliament
Orders in Council Examples
The Extradition (Terrorist Bombings) Order 2002 : Allowed terror suspects to be extradited to the UK for questioning and trial. The Enabling Act for this order was the Extradition Act 1989
The Afghanistan (United Nations Sanctions) Order 2001 : Made it an offence to make funds available to Osama Bin Laden or the Taliban
Fuel crisis (2000)
Foot and mouth outbreak (2001)
Dealing w terrorism after 9/11 (2001)
Statutory Instruments
A piece of legislation created by a government minister under the authority of an Enabling Act
-Refers to the rules and regulations made by government ministers regarding their area of responsibility
-This is a major form of law making —- about 3000 laws are made each year through Statutory Instruments
-Ministers follow guidelines from an Enabling Act
They can also be used to update the law e.g. regularly increase the national minimum wage under (The National Minimum Wage Act 1998)
By Laws
These can be made by local authorities to cover matters in their own area
•A county council can pass by-laws affecting a whole country
•A district / town council can make by-laws for its own district / town
•Usually made under [The Local Government (Miscellaneous Provisions) Act 1982]
(Boddington v British Transport Police) confirms that by-laws made by public bodies and companies are enforceable in the courts
Examples of By-Laws
•Local by-laws involve traffic control such as parking restrictions
•Used for regulating behaviour
•Local companies for matters within their jurisdiction
Controls by Parliament
•Approval on Parent / Enabling Act
•Negative Resolution Procedure
•Affirmative Resolution Procedure
•Scrutiny by Comitttee
As delegated legislation is law made by non-elected bodies , there needs to be a ‘watchdog’ system to check for problems
The Enabling Act
Parliament controls delegated legislation by passing an Enabling Act thay must be followed
•This limits the power of the people who make DL by stating what can / cannot be done—- strict procedures and limitations
•They may be repealed , revoked or amended at any time
•Parliament may be required to vote its approval of the enabling legislation
•Consulatuon with Government Ministers , those with relevant expertise e.g. police and local authorities
The Negative Resolution
Most Statutory Instruments will be subject to a negative resolution
•Statutory Instruments will become law unless rejected by Parliament within 40 days
•Issue — few statutory instruments are looked at each year so many are made each year
The Affirmative Resolution
A small number of statutory instruments are subject to this — statutory instrument will not become law until it had been specifically approved by Parliament
•If this is a necessary procedure , it will be stated in the Enabling Act
•Affirmative resolution is always required before new/revised Police codes of Practice (The Police and Criminal Evidence Act 1984)
•Issue—- Parliament cannot amend the statutory instrument, only approved, annulled or withdrawn
Scrutiny Committee
These bodies are an effective check on statutory instruments and are created to review
-The Joint Committee on Statutory Committee (Scrutiny Committee)
-The Secondary Legislation Scrutiny Committee in the HOL
The Joint Committee on Statutory Committee
Is the main committee that scrutinises statutory instruments to ensure that they do not
-Impose a tax or charge as only an elected body has such a right
-Appear to have retrospective effect which was not provided for by Enabling Act
-Appear to have gone beyond its powers or make some unusual or unexpected use of those powers or are unclear / defective
-Unusual use of powers
The Secondary Legislation Scrutiny Committee in the HOL
Can only check once legislation made / in force
Reviews all statutory instruments and drawn them to parliaments attention
Effectiveness of Controls by Parliament
Advantages
•Acts as a checking mechanism
•By laws deal with local issues — better use of time
•Committee role is to report back to parliament— effective control
•Affirmative resolution allows a debate of the proposed legislation so issues can be fully considered
•Negative resolution is quick so does not use up valuable parliamentary time , if objections are raised there can still be a debate
•Scrutiny committee is effective as many statutory instruments are subject to some scrutiny via one of the committees
Effectiveness of Controls by Parliament
Disadvantages
•Not enough time to check all statutory instruments
•Scrutiny Committee only report back to parliament and may be ignored, don’t alter / cannot amend statutory instruments
•Affirmative procedure requires debate which takes up parliamentary time which arguably defeats the object of DL
•Affirmative procedure— government with a majority will usually win any vote
•Negative resolution is of limited affect as there is no requirement for members of Parliament to look at statutory instruments— most of which become law automatically without scrutiny
•Impossible to scrutinise all 3000 statutory instruments passed each year
Controls by The Courts
•Judicial Review
•Procedural Ultra Vires
•Substantive Ultra Vires
•Wednesbury Unreasonableness
The courts control delegated legislation after it has been passed
Judicial Review
The courts can control delegated legislation through the doctrine of judicial review
-Takes place in a special Administrative Court within the Kings Bench Divisional Court
-Based on the doctrine of Ultra Vires ; ‘beyond their powers’. The process allows parties to challenge the lawfulness of administrative decision-making
-Person making the challenge must have ‘standing’ and be directly affected by legislation
-If successful the DL will be declared void and no longer effective
(R v Home Sec, ex parte Fire Brigades Union) changes made by the Home Secretary to the Criminal Injuries Compensation Scheme were ruled to be beyond the powers given to him in the Criminal Justice Act 1988
Procedural Ultra Vires
It is ‘ultra Vires’ because the correct procedure in the Enabling Act has not been followed
(Aylesbury Mushroom case) A piece of delegated legislation was declared void because the requirement to consult with interested parties before making the rules had not been properly followed
