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
