delegated legislation Flashcards
what is delegated legislation?
parliament give someone else the power to make some law - it can sometimes be referred to as secondary legislation
where is the authority found to create law?
parliament create a Parent Act, called an enabling act, which gives guidelines on when public bodies can make laws
what are the 3 types of delegated legislation?
-orders by council
-by-laws
-statutory instruments
what are orders by council?
-made by the the king and privy council
-the privy council can
.amend or update laws
.transfer responsibility between gov departments
.make law in times of emergency when parliament is not sitting
-an example is The Misuse of Drugs Act 1971
what are by-laws?
they are made by local authorities such as the council, and they only apply to areas in which these local authorities have control over. they exist because it is quicker for these people to make laws rather than going through parliament
what are statutory instruments?
they are made by government departments and ministers. they are known as laws, orders or regulations, which apply nationally. they can only be made for their area of expertise, and around 3000 are made each year
why do we use delegated legislation?
-they can be used when parliament does not have the time to make new laws
-parliament may not always have the necessary expertise to make these laws
-parliament may not know of issues in certain areas like parking issues or dog poop
-delegated legislation is easier to be changed or made more easily
what is the enabling act?
parliament chooses what powers to delegate, and decides which government ministers to give the powers to, and who they need to consult/how they make the delegated law. it also specifies where the law applies and parliament are allowed to repeal this rule at any point
what does it say in the enabling act for statutory instruments?
if they must go through negative resolutions or affirmative resolutions
what is a negative resolution?
where law will immediately take place, and will not be removed unless parliament reject the law within 40 days
what is an affirmative resolution?
where a debate will follow the introduction of the law, and both houses must expressly approve before it can be put into force - however parliament cannot ammend this
what do the scrutiny committee do?
-review and check all statutory instruments
-can draw attention of both houses to a SI that needs attention
-cannot alter any SI, only refer the issue to parliament
why may the scrutiny committee refer an issue to parliament?
-SI imposes a change/levy
-SI applies retrospectively
-SI exceeds powers given in enabling act
-SI makes unexpected or unusual use of powers
-SI is unclear or defective in some way
what are controls by the court?
judicial review
what does judicial review say?
that the validity of the enabling act can never be challenged because the supreme court is superior, however a delegated leg can be challenged
what is it called when court agrees with the challenge imposed in a judicial review?
they hold the DL to be Ultra Vires
why may something be considered ultra vires?
-goes beyond the power of the enabling act
-dl did not follow the correct procedure when being made
-a decision under dl is unreasonable
-R v Home Secretary
-Agricultural training board v aylesbury mushrooms
