Delegated Legislation Flashcards
what is delegated legislation?
parliament does not have time to deal with every matter itself so delegated legislation is sometimes made by another person or body with the authority of parliament
parliament passes an enabling act which creates the framework of the law and delegates power to others to make more detailed law on the area
EXAMPLE = Police and Criminal Evidence Act 1984, gives the Home Secretary powers to make Codes of Practice for the use of police powers
what are the 3 types of delegated legislation?
an enabling act gives the right to create one of the types of delegated legislation…
- orders in council
- statutory instruments
- by laws
what are orders in council?
drafted by government departments and approved by the Queen and Privy Council
the Privy Council is made up of the prime minister and other leading members of the government
effectively allows government to make laws without going through parliament
there must be an enabling act allowing the privy council to make orders in council on a particular topic — e.g. changes of the category of cannabis, the enabling act was the Misuse of Drugs Act 1971
what can orders in council be made on?
orders in council can be made on a wide range of matters, especially:
- transferring responsibility between government departments — e.g. when the Ministry of Justice was created, the powers of the previous Department of Constitutional Affairs were transferred to the new ministry
- bringing acts of parliament into force
- giving legal effect to EU directives
- dealing with some aspects of foreign affairs
- making law in times of national emergency when parliament is not sitting — e.g. Civil Contingencies Act 2004
- amend or update existing law — e.g. in 2003, an order in council was used to alter the Misuse of Drugs Act 1971 to make cannabis a class C drug, 5 years later the government decided this was a mistake and another order in council was made to change cannabis back to a class B drug
what are statutory instruments?
delegated legislation made by ministers and government departments
make regulations for areas under their jurisdiction — e.g. the minister for work and pensions can make regulations of work related matters such as health and safety at work
over 3,000 are made a year
can be very short, covering one point such as making the annual change to minimum wage or may be very long and too complex to include in an act of parliament
examples of detailed statutory instruments
Building Regulations 2010
• 10 parts
• 6 schedules
• amended numerous times by further regulations
• made under the European Communities Act 1972 and the Building Act 1984
Police Codes of Practice
• relates to powers such as stop and search
• 8 codes
• made by the minister for justice under the Police and Criminal Evidence Act 1984
statutory instruments: types of resolution
NEGATIVE RESOLUTION
• most statutory instruments are introduced by a negative resolution procedure
• relevant statutory instrument will become law unless rejected by parliament within 40 days
AFFIRMATIVE RESOLUTION
• small number of statutory instruments are subject to affirmative resolution
• statutory instruments will not become law unless specifically approved by parliament
• need for affirmative resolution will be included in the enabling act
SUPER AFFIRMATIVE RESOLUTION
• available if delegated legislation has been made under the authority of the Legislative and Regulatory Reform Act 2006
• gives ministers power to make orders to remove or reduce burdens from legislation
• parliament is able to exercise greater control
what are by laws?
made by local authorities to cover matters within their own area
for example, a county council can pass laws affecting the whole county while a town council can only make by laws for its town
most by laws are created under the Local Government Act 1972 or Local Government Act 1982
by laws must be confirmed and approved by the relevant secretary of state before they can come into force
what can many local by laws involve?
many local by laws will involve…
- traffic control such as parking restrictions
- when dogs can be exercised on a beach
- banning alcohol in public places
- banning skateboarding at local parks
how else can by laws be made?
can be made by public corporations and certain companies for matters within their jurisdiction which involve the public
bodies such as the British Airport Authority and railway companies can enforce rules about public behaviour on their premises
local water company might ban the use of hose pipes in the summer
what are controls on delegated legislation?
the vast bulk of legislation is made by people other than parliament, without being subject to full scrutiny via the legislative process
most delegated legislation is made by unelected bodies so its important to make sure that power is not abused
control is exercised by parliament and the courts
how can parliament control delegated legislation?
enabling act
resolution procedures
questioning of government ministers
scrutiny committees
how does the enabling act control delegated legislation?
- sets out the limits within which any delegated legislation must be made
- states which government minister can make regulations
- states the types of laws to be made
- states whether the laws can be made for the whole country or only for certain places
- sets out whether the government department must consult other people before making the regulations
- parliament retains control over the delegated legislation as it can repeal the powers in the enabling act at any time
how do resolution procedures control delegated legislation?
- affirmative resolution procedure — statutory instrument will not become law unless specifically approved by parliament
- negative resolution procedure — relevant statutory instrument will become law unless rejected by parliament within 40 days
- super affirmative resolution procedure — minister must have regard to any representations made by outside bodies or resolutions of either house of parliament
how does questions government ministers control delegated legislation?
individual ministers may be questioned by MPs in the house of commons on their work in departments
can include questioned about proposed or current delegated legislation
holds them to account and forces them to explain their decisions
how do scrutiny committees control delegated legislation?
Joint Committee on Statutory Instruments reviews all statutory instruments and draws attention of both houses of parliament to points that need further consideration
technical review, not based on policy
main grounds for referring a statutory instrument back to parliament:
• it imposes a tax or charge — only an elected body has such a right
• appears to have retrospective effect — which was not provided by the enabling act
• appears to have gone beyond powers given under the enabling act — may make some unusual or unexpected use of powers
what is the main problem with scrutiny committees?
review is technical and only limited to the points above
even if the committee discovers a breach of one of these points, they accept alter the regulations or stop them from becoming law
can only draw the attention of parliament to the matter
effectiveness of parliamentary controls
sheer number of pieces of delegated legislation mean that not all of them can be given proper scrutiny before they come into force AND it’s very difficult to remove a piece of legislation once it comes into force
much legislation made in this way is very technical and those scrutinising it will usually not have sufficient knowledge of the relevant law needed to assess whether the legislation was validly made
use of affirmative procedure does not usually draw parliament’s attention to the delegated legislation
scrutiny committees can only make recommendations to parliament, it’s up to parliament to act on these recommendations or not
how do the courts control delegated legislation?
delegated legislation can be challenged in court by a person with sufficient standing or interest in the case
can be challenged by judicial review on the ground that it is ultra vires (which means beyond the powers given by parliament in the enabling act)
if found to be ultra vires then legislation will be void and of no effect
process of judicial review takes place in a special Administrative Court within the Queen’s Bench Divisional Court
control by the courts: when can delegated legislation be challenged?
delegated legislation can be challenged on the grounds that…
- it goes beyond the powers set out by the enabling act (known as substantive ultra vires)
- it failed to follow the correct procedure (known as procedural ultra vires)
- it is unreasonable
case for substantive ultra vires
R v Home Secretary
- changes made by the home secretary to the Criminal Compensation Scheme
- courts decided that the changes went beyond the delegated powers given in the enabling act (the Criminal Justice Act 1988)
case for procedural ultra vires
Agricultural Training Board v Aylesbury Mushrooms
- minister of labour failed to consult the Mushroom Growers Association over establishing a new training board
- this association represented about 85% of all mushroom growers
- led to the order being declared invalid
case for legislation being unreasonable
Associated Picture Houses v Wednesday Corporation
- cinema was granted a license to open on Sundays subject to the condition that no children under 15 are allowed to be admitted whether with an adult or not
- this condition was “so unreasonable that no reasonable authority could ever come to it”
effectiveness of judicial control
control by the courts has been successful is many cases by there are limits in judicial control — e.g. judicial review is limited
a piece of delegated legislation can only be challenged by a person who has standing, they must be affected by the legislation or decision. legislation may have been in force for years before someone affected is prepared to challenge it in court
challenges to delegated legislation have to be made against a public body or government department who are likely to have greater resources and funding to defend the legislation
the UK is still a member of the EU, so statutory instruments can also be declared void if they conflict with EU legislation
