Delegated legislation Flashcards
define delegated legislation
when Parliament pass down some of their law making
power to other bodies. This is done through an Enabling Act such as the Police and
Criminal Evidence Act (PACE) 1984.
Orders in Council
Made by: Monarch and their privy council
Use: amend old laws,
transfer power between Government departments, and respond to emergencies
when Parliament are not sitting (under the Civil Contingencies Act 2004).
Example: The Misuse of Drugs Act 1971 (Amendment) Order 2008
By-Laws
Made by: Local authorities or large public bodies and they only apply to the area under their control
Example: London Underground smoking ban
Statutory instruments
Made by: Government ministers about their area of expertise
Example: Police Code of Practice – under PACE, the Minister of Justice is allowed to create
rules about stop and search, arrest etc.
Roughly 3000 of these are made a year and they apply nationally.
How does the Enabling Act control DL?
-decide which ministers to give power to
-specify who they need to consult
-specify where the law applies
-The power to repeal, instantly removing the power to make DL
Explain what happens under the Negative Resolution procedure?
-statutory instrument proposed
-will become law unless rejected within 40 days, there is no debate about the SI
What must happen for an Affirmative Resolutions procedure?
-statutory instrument proposed
-debate follows in both houses
-must be expressly approved by the parliament
How does the Joint Select Committee control SIs
refer SIs to Parliament if they apply retrospectively, go beyond the Enabling Act, or use their powers in an unusual way.
However, the Committee cannot alter the SI themselves, just refer it to Parliament.
How do the courts control DL
Through judicial review. This is when someone with ‘standing’ wants the King’s Bench Divisional Court (formerly QBD) to say that DL is ‘ultra vires’ and therefore void.
In what 3 situations might DL be considered ‘ultra vires’
- Delegated legislation goes beyond the powers granted by the Parent Act (R v Home
Secretary ex parte Fire Brigades Union.) - Delegated Legislation did not follow the correct procedure (Agricultural Training Board v Aylesbury Mushrooms)
- A decision made under DL was unreasonable ( R v Swindon NHS Trust)
Enabling act is effective because
it is where parliament sets out the exact conditions in which all 3 types of delegated legislation can be made
negative resolutions are effective because
it is a very simple process that doesn’t waste anybody’s time due to the law automatically passing if nothing happens for 40 days
negative resolutions are not effective because
if no action is taken by parliament within 40 days of the proposed SI being presented, bad law could slip through the gap without parliament noticing it
affirmative resolutions are effective because
it has to be specifically approved by parliament and so bad laws should be picked up on
affirmative resolutions are not effective because
it takes up parliaments time which defeats the whole point of delegating and parliament cannot amend the DL, only approve/deny it
the scrutiny committee is effective because
with so much DL, they can try to catch bad bits of the law that parliament would miss
the scrutiny committee is not effective because
they can only refer the law to parliament, not do anything to it themselves; and may not have specialist knowledge so may not know if the law is problematic.
judicial reviews are effective because
there are numerous ways to prove that DL is ultra vires and the court can hear from expert witnesses to testify about any specialist matters to work out if the law should be void
judicial reviews are not effective because
-only someone with ‘standing’ is able to being the case, not everyone can sue.
-Plus, this person may be going against a public body who will have more resources, so the odds of winning are lower
-The court cannot change the law, only make it void
-Only 0.22% of judicial review cases were successful
Disadvantage of DL 1
A disadvantage of delegated legislation is that it is undemocratic. The Privy Council
who make Orders in Council is not only made up of elected MPs but also unelected judges
and bishops. Statutory instruments are often made by unelected civil servants.
For example, a statutory instrument was passed in 2012 by the Minister of Justice (and unelected civil servants) restricting the rights of immigrants to get legal aid. This SI was challenged in court
and it was decided that the SI had been made ultra vires and may not be representative of
public opinion.
This means that important laws may not represent what the public want.
However, it would be impossible for Parliament to make laws about everything, and so it is necessary to trust others to make laws about less urgent things whilst Parliament focus on important matters such as Brexit.
Disadvantage of DL 2
Another problem with DL is that it can be complex. Much like Acts of Parliament, delegated
legislation can be long and complicated and often requires judges to interpret the wording to fully understand them.
An example is R V Swindon NHS Trust, where the case
involved technical rules and specific drugs, and the court had to decide what was
‘exceptional’ in relation to medical needs.
This means it is hard to the public to understand
delegated legislation and it may be unclear how exactly they should apply in practice.
However, one reason that DL may be complex is because statutory instruments are created by people with special knowledge, meaning that the law should, in theory, be made with expertise.
Disadvantage of DL 3
A weakness of DL is the sheer volume of it. Over 3000 SIs and several thousand by-laws
are made each year, often with little publicity.
An example of this is when the British Airports Authority passed a by-law stopping passengers from taking tennis racquets on planes. A passenger was fined for doing this even though he was unaware he was doing anything wrong.
This is bad because it is impossible for the average person to be aware of all these
laws, meaning that individuals and companies may be unaware of what is legal and illegal.
However, one reason there is so much DL is because local areas have their own by-laws
that are tailored to be effective in a specific area, which is advantageous.
Disadvantage of DL 4
A final problem is that the controls for DL are not always effective.
For instance, 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, which is problematic.
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.
Advantage of DL 1
One advantage of delegated legislation (DL) is that it saves Parliament time. By allowing
other bodies to make law, this frees up parliamentary time. Parliament has 650 MPs in H of
C and therefore any Acts passed involve a lot of debate and consequently a lot of time.
For instance, 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 types of work places, eg Mining Regulations 2014.
This allows P to concentrate on other matters such as budgets and BREXIT and means that legislation keeps up with advances in society.
However, this does mean that unelected people are making the law, and therefore DL may not be very democratic and representative of what society actually wants.
Advantage of DL 2
A strength of DL is that it can apply to local areas. By enabling Local Councils to make by-
laws, they can assess the particular needs of the locality and respond by making laws to
deal with specific issues.
For example there may be a problem with excessive drinking and crime in certain parts of a town. A local council can pass a by-law making that area an
alcohol free zone.
This is good because the law can be made by people who know the local area well and will have an understanding of how best to solve problems – which Parliament may not be able to do themselves.
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, which is very problematic and not a very effective method of making law.
Advantage of DL 3
Another positive of DL is that it can be made by those with specialist knowledge. Statutory
instruments allow specific Government departments and ministers to make rules for their
area of speciality.
For instance, 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 these rules may have to be complex and require specialist knowledge to
understand, which these ministers and departments would have. Comparatively, Parliament as a whole will not have this knowledge and it would be difficult for them to make laws as effectively as these individuals.
However, this means that the Act might be written in very
specialist language and be confusing to apply, making the law hard to interpret and not very effective.
Advantage of DL 4
A final positive of DL is that there are numerous controls from Parliament and the courts.
For instance, the scrutiny committee check statutory instruments for Parliament, and courts can declare DL ultra vires in some situations. An example was when the correct procedure was not followed in ATB v Aylesbury Mushrooms so the courts declared the DL as void.
This is positive because it ensures that DL works in the way that Parliament intended.
However, the controls are not always effective because the scrutiny committee can only refer problems to Parliament and the courts do not allow many judicial review cases each year.
