Delegated legislation Flashcards
What is delegated legislation?
Parliament giving someone else power to make law
Delegate= hand down
What allows someone to make delegated legislation?
Parliament create a parent act (Enabling Act)
These acts grant other people power
What is the Enabling Act?
It is primary legislation, made by parliament as a whole. An example of the Enabling Act is the Police and Criminal Evidence Act 1984
Why do you think Parliament passes on responsbility?
Saves time and creates a better understanding
What are the three types of delegated legislation?
- Orders in Council
- By -Laws
- Statutory instruments
Who makes orders in council?
King and Privy Council (senior members of government), who meet with the monarch
Why do we have orders in council?
Make law quickly with some representation of Parliament
When are orders in council used?
-To ammend or update laws
-Transfer responsibility between gov departments
-Make law in times of emergency when parliament isnt sitting (under Civil Contingencies Act 2004)
What is an example of an order in council?
The Misuse of Drugs Act 1971 (Amendment) Order 2008
This was an order in council that amended the misuse of drugs act. It reclassified cannabis as a class B drug (previously C)
Who makes by laws?
Local authorities (county councils or large public bodies authorised to do so)
To whom do by laws apply to?
To the areas over which the council/ public body has control
Why do we have by laws?
Its quikcer for these public bodies to make these decisions and they should know the local area better than parliament would
Examples of issues dealt with by by-laws?
Traffic regulations, parking, drinking alcohol on the streets
Provide an example of a by law
The ban on smoking on the London Underground
Who makes statutory instruments?
Gov depaetments and ministers
What can these people make statutory instruments about?
Can only be made for their area of responsibility (education secrety Bridget Philipson can only make SIS relating to educational matters)
How many statutory instruments get made a year?
3000
Why do we have statutory instruments?
Specialists make the laws better
What is an example of statutory instruments?
Police codes of practice
Who made the Police code of practice statutory instrument? And what enabling act lets them do this?
Minister of Justice- Gets to set out rules about practices such as stop and search
Police and Criminal Evidence Act
What is the statutory instrument for cornona virus?
The health protection (corona) regulations 2020
What is reason 1 for delegated ligislation?
TIME- Parliament doesnt have time to debate every single detail of every act. By dividing up the work to other people, this means that laws are made quicker
What is reason 2 for delegated ligislation?
EXPERTISE- Parliament will not have the neccessary expertise to make the best laws. P are made up of lots of different people, whereas SIS are made specifically by people with expertise in their field
What is reason 3 for delegated ligislation?
LOCAL AREAS- P may not live in/ know of issues in local areas, they consider national issues. By laws are made by people who live in/work in smaller areas and so can make laws specific to that area
What is reason 4 for delegated ligislation?
EASIER- DL can be changed and made more easily, allowing quicker responses to changing cirmunstances. Acts of P have many stages to pass, whereas orders in council can skip this process when the law needs to respond to emergencies
What does it mean for parliament to repeal the Enabling Act?
This would instantly remove the power of the delegated body to make law
How does the Enabling Act control DL?
-P choses what powers to delegate in the enabling act
-It can decide which gov ministers to give powers to
-Specifies who they need to consult/ how they make the delegated law
-Specifies wher the delegated law applies
What is the negative resolution procedure?
This is the most common procedure and SI stays in force unless denied
SI is proposed and will become law immediatley and will stay law unless rejected by parliament within 4 days
No debate on the issue
What is the affirmative resolution?
Enabling Acts dealing with subjects of special importance may require parliament to vote its approval of DL
What happens in the affirmative resolution procedure?
This is less common and the SI only comes into force if approved
Usually applies to important areas of law
A debate follows intro and both houses of parliament must expressly approve the SI before it can be enacted
P cant ammend the SI- only approve or withdraw it
Example of affirmative resolution?
Changes to the Police code in PACE must be approved before they come into force
Questioning of government ministers- what does this entail?
During parliamentary debate, parliament will ask the minister whose creating SI questions to get a better understanding
What does the scrutinty committe review?
All statutory instruments
What can the scutiny committe do?
Can draw the attention of BOTH houses of parliament to any statutory instruments which need further consideration
Why might the committee refer a statutory instrument back to parliament?
-statutory instruments impose a charge/levy
-statutory instruments applies retrospectively (this is banned in enabling acts)
-statutory instruments exceeds powers given in enabling act
-statutory instruments make unexpetced or unsual use of powers
-statutory instrument is unclear
What are the limitations of the scrutiny committee?
Cannot ALTER any statutory instruments- only refer the problem to parliament
What does it mean by parliament being ‘supreme’?
The validity of the enabling act cannot be challeneged, but the DL itself can be challeneged by someone with standing or interest in the case
What does ‘ultra vires’ mean?
The court can decide that the DL is ‘void’ (no longer has effect)
What are the three situations where the court will declare DL as ‘ultra vires’?
- The DL goes beyond the powers granted by the parent act
2.The DL did not follow the correct procedure - A decision made under DL was unreasonable
Case for the DL going beyond the powers granted by the parent act
R v Home secretary ex parte fire brigades union
What was the home secretary allowed to do in R v Home secretary ex parte fire brigades union?
Decide the date to introduce the criminal injury compensation scheme
What did the home secretrary do in R v Home secretary ex parte fire brigades union?
Made some changes to the scheme to reduce the amount of compensation alloweed and introduced the scheme
Had the home secretary gone beyond the powers given to him in R v Home secretary ex parte fire brigades union?
Yes, he went beyond what the enabling act gave him.
What did the court decide in R v Home secretary ex parte fire brigades union?
Its ultra vires and that his amended scheme didnt apply
Case for The DL not following the correct procedure
ATB v Aylesbury Mushrooms
How had the minister fail to follow procedure in ATB v Aylesbury Mushrooms?
He didnt consult the mushroom growers association
What did the court decide in ATB v Aylesbury Mushrooms?
Ultra vires and his regulations didnt apply to mushroom growers
Case for a decision under DL being unreasonable
R (rogers) v Swindon NHS trust
What did the court say was unreasonable in R (rogers) v Swindon NHS trust?
Its wrong to draw a distinction between women with breast cancer if their medical needs are the same
What did the court decide in R (rogers) v Swindon NHS trust?
Ultra vires, not given the drug
1st advantage of DL
** saves parliament time** -There are 650 mps in the house of commons meaning when an act arises it involves multiple debates leading to time taken up. By allowing other bodies to make DL, it frees up parliamentary time. For example, the health and safety at work act 1974 enabled the minister of work and pensions to make regulations through a statutory instrument relating to health and safety in all workplaces (Mining regulations 2014). This allows P to concentrate their time on other important things such as brexit. However, having unelected bodies in parliament making DL can mean DL may be undemocratic.
2nd advantage of DL
apply to local areas -By enabling local councils to make laws, they can assess the particular needs of the locality and respond by making laws for that specific issue. For example there may be a problem with excessive drinking in an area of town. A local council can then make a by law making that area alcohol free. This is good because the law can be made by people who know the local area well. However, this results in thousands of by-laws every year with very little publicity, meaning people may not actually know what the laws in their area are.
3rd advantage of DL
Dl can be made by those with specialist knowledge -SI’s allow specific government departments to make rules for their area of specialty. For example, PACE 1984 allows the minister of justice to set the police codes of practice using his understanding of the criminal justice system. This is good because the rules may be complex and require specialist knowledge to understand which these ministers would have. However this means that the act might be written in a specialist language which may be confusing to apply, making the law hard to interpret and not very effective.
4th advantage of DL
numerous controls from parliament- For instance, the scrutiny committee checks SI’s for parliament, and courts can declare the DL ultra vires in some situations. An example of this was when the correct procedure was not followed in ATB v Aylesbury mushrooms so the courts declared the DL as void. This is good because it makes sure DL is working in the way P wants it to. However the controls aren’t always effective because the SC can only refer problems to P, and the courts do not allow many judicial review cases each year.
1st disadvantage of DL
may be undemocratic- The privy council who makes orders in council is not only made up of elected MPS but also unelected judges and bishops. SI’s are often made by unelected civil servants. An SI was passed in 2012 by the minister of justice restricting the rights of immigrants to get legal aid. This SI was challenged in court and was classed as ultra vires. This means that important laws may not be representative of what the public wants. However it would be impossible for parliament to make laws about everything so it’s necessary to trust others to make laws to free parliament some time.
2nd disadvantage of DL
the little publicity it has-3000 SI’s and thousands of by laws are made each year often have no publicity. An example of this is when the British Airports authority passed a by law stopping passengers from taking tennis rackets onto planes. A passenger was then fined for doing this when he had no idea what he was doing wrong. This is bad because it’s hard for the average person to know about these laws. However the reason why there is so much DL is because local areas have their own bylaws which are tailored to a specific area.
3rd disadvantage of DL
can be complex-DL can be long and complicated and often requires judges to interpret the wording to fully understand them. An example of this is R v Swindon NHS trust where the case involved technical rules for drugs and the court had to decide what was ‘exceptional’ in relation to medical needs. This means it’s hard for the public to understand DL. However, DL may be complex because its made by ministers with specialist knowledge meaning the law should be made with expertise.
4th disadvantage of DL
not always effective- The scrutiny committee can only refer problems to Parliament and hope they decide to take action, and very few judicial reviews are actually successful. In 2018, nearly 3,600 reviews were requested, but only 184 cases went ahead and the Government lost 40% of these. This means that there may be quite a lot of bad delegated legislation being made that is not being resolved properly. However, it is still positive that the courts are able to solve the problem in the cases they hear, and having a committee to double check work for Parliament is still beneficial.
