Delegated legislation Flashcards
what is DL
a secondary legislation controlled by parent (enabling) Act of Parliament
who does parliament delegate power to make more detailed law, within the framework of the Act, to (3)
1) Orders in Council
2) Statutory Instruments
3) Bylaws
who are Orders in Council made by
The King + Privy Council
who is the privy council made up of
prime minister + other leading members of the government
what are orders in council used to do
- give effect to European Directives
- make emergency legislation as a result of Emergency Powers Act + Civil Contingencies Act 2004
- transfer responsibility between Gov departments e.g. Home office to MoJ
example of orders in council making emergency legislation
Orders in Council used to deal with foot and mouth outbreak in 2001
explain what a statutory instrument is
- rules and regulations made by Gov. ministers - ministers given responsibility to make regulations for areas under their particular responsibility
SI are a major method of law making - how many are made approx each year
approx. 3000
what can SIs be used to do
update, change or add detail to laws
example of SI made in very short time
making annual change to minimum wage
example of very long + detailed SI
Health Protection (Coronavirus) Regulations 2020
who are bylaws made by
local councils (as a result of Local Government Act 1972) & other public bodies
what do LA and PB have power to do under bylaws with example
power to pass laws that concern their area e.g. Preston Council can pass laws affecting Preston such as parking
e.g. of SI made by local authority
2011 Manchester City Council increased price of alcohol through a bylaw to discourage binge drinking
e.g. of SI made by public body
London Underground making bylaw regarding behaviour on their premises - banning smoking on the underground under a bylaw under the Road Traffic Act 1962, prior to national smoking ban
reasons for DL (4)
1) expertise/ knowledge
2) consultation
3) speed/time saving
4) flexibility
explain expertise/ knowledge as reason for DL
parliament may not have necessary technical expertise/ local knowledge required whereas gov. ministers + their departments do, regarding their area of responsibility
explain consultation as a reason for DL
allows parliament to debate main principles thoroughly but leave detail to be filled by those with expert knowledge - time to consult with the experts before regs. drafted
explain speed/ time saving as a reason for DL
impossible for parliament to make over 3000 SIs, local bylaws + emergency provisions, as well as all the Gov. Bills introduced each year
explain flexibility as a reason for DL
- can be introduced, amended or withdrawn easily so that the law can be kept up to date
- ministers can respond to new/ unforeseen situations by amending regs. made through a SI e.g. amending min. wage by SI every year
parliamentary controls on DL (6)
1) the enabling act
2) ministers may be questioned by MPs in HoC about their work
3) affirmative resolutions
4) negative resolutions
5) the Delegated Powers Scrutiny Committee
6) The Legislative and Regulatory Reform Act 2006
why does DL need controls
may be made by non-elected bodies
explain affirmative resolutions
requires some SIs to be approved by Parliament before it becomes law (this will be stated in enabling act - e.g. changes/additions to police code of practice under PACE 1984)
explain negative resolutions
the SI will become law unless rejected by parliament within 40 days of being put before it
in the HoL, what does the Delegated Powers Scrutiny Committee do
check the powers being delegated in bills are appropriate. Review all SIs + where necessary draw parliament’s attention to any concerns
examples of when the Delegated Powers Scrutiny Committee would need to draw parliaments attention to concerns
e.g. it imposes a tax/ charge, it has retrospective effect, it has gone beyond the powers set out in the enabling act
what is the role of the Legislative and Regulatory Reform Act 2006
sets out the procedure for making SIs that repeal an existing law to remove a ‘burdern’ - ministers must consult various people + organisations
the judiciary have control over DL through judicial review process when a piece of legislation is deemed….
ultra vires
what does ultra vires mean
goes beyond the powers of the enabling act
if a piece of delegated legislation is deemed ultra vires what will happen + case
it will be declared void, as in R v Home Sec ex parte - changes made by Home Sec. to the Criminal Injuries Compensation scheme were held to have gone beyond the power given to him in the Criminal Justice Act 1988
3 examples of when DL may be ultra vires + 1 case
if it attempts to:
- make unreasonable regulations - Strickland v Hayes Borough Council
- levy taxes
- sub-delegate
what 2 types of ultra vires are there with cases
Procedural ultra vires - procedure set out by parent act has not been followed - Aylsebury Mushrooms
Substantive ultra vires - the DL goes beyond what parliament intended - R v Sec State for education, ex parte NUT
4 advantages of delegated legislation
1) people with technical expertise/ local knowledge involved in making the law so should be better suited than MPs
2) allows consultation particularly on technical matters (e.g. taxation)
3) much quicker than parliamentary law making - frees up parliament’s time to deal with other important matters
4) flexible - can be introduced, amended or withdrawn quickly
4 negatives of delegated legislation
1) un-democratic?
2) parliament’s controls of DL are limited (e.g. majority negative resolution)
3) large volume - lack publicity
4) issue of sub-delegation difficult to control (e.g. law made by civil servant + merely ‘rubber stamped’ by the minister of that dep.)
