DELEGATED LEGISLATION Flashcards
True or false, Parliament legislates both directly and indirectly
TRUE
how does parliament legislate directly
Acts of Parliament (also known as primary legislations
how does parliament legislate indirectly
using delegated or subordinate legislation (also known as secondary legislation)
How are secondary legislation made
made by a subordinate authority (E.g government ministers or local authority) pursuant to a law-making power given to it by an Act of Parliament
what are acts which provide a subordinate authority commonly referred to as
Enabling or Parent Act
Secondary legislation made by a minister is usually in what type of form?
A statutory instrument (i.e. legislative document containing rules - subordinate legislation - made under the power conferred by an Act of Parliament)
what does secondary legislation made by a minister usually contain
a set of regulations applicable to the particular subject area (e.g. road traffic regulations
What type of form are secondary legislation made by a local authority usually in the form of?
By-laws (E.g. those which regulate the use of public parks and amenities)
what is an example of a delegated legislation
European Communities Act 1972
What act helps define what a statutory instrument is
Statutory Instruments Act 1946 s.1
How is a statutory instrument defined
S1(1) - where by this act… power to make, confirm or approve orders, rules, regulations or other subordinate legislation is conferred on His Majesty in Council… then:
a) in the case of a power conferred on His Majesty, to be exercisable by ORDER IN COUNCIL;
b) in the case of a power conferred on a MINISTER OF THE CROWN, to be exercisable by statutory instrument…
any document by which that power is exercised shall be known as a ‘statutory instrument’…
Where in a statutory instrument will state the authority in which it was made under
the preamble
who usually drafts SI’s
normally drafted by lawyers within the relevant government department
what does an SI usually have
the force of law as an act of parliament
what is an SI not subject to
not subject to the same parliamentary stages of a bill but has two procedures
What are the two procedures
negative and affirmative procedure (depending of the provisions of the parent/enabling act) under the statutory instrument act 1946
What is the negative procedure
where an SI is laid down before parliament, becomes law (usually wihtin 40 days) - UNLESS, either house (commons or lords) passes a motion calling for its annulment within the 40 days - if neither house passes a motion the SI is considered ‘approved’ bu parliament indirectly
what is the affirmative procedure
where an SI is to become law, both houses must pass a motion approving it (usually within 28 days) i.e. the measure must be discussed in parliament before it can become law
What is regardless of both negative and affirmative procedures?
No amendment by either house, i.e. approval or dismissal only
what are orders in council
a form of delegated legislation made by the Privy Council in the exercise of powers conferred by a parent act, (i.e. power exercised by the ‘Queen in Council’.)
how are orders in council treated as
Procedurally, they are treated as statutory instruments and therefore subject to the statutory instruments act 1946.
What act is an example of the use of orders in council
European community act 1972
What are By-laws
Laws made by local authorities, public corporations or other companies vested with statutory powers
how are by-laws effective
they need to be firstly confirmed by the secretary of state
What act can be used to show the effectiveness of by-laws
Local government act 1972
What does the case of Boddington v British Transport POlice say
B was convicted of smoking in carriage where smoking was prohibited contrary to bylaw
b argued that the decision to post notices banning smoking in all carriages of was ultra vires to its powers ti bring bylaw into force
the court held that it was not open to b to raise that specific public law defence in the criminal proceedings brought against him
who are by-laws binding to
On all persons, areas or organisation to which it relates
what are the reasons for delegated legislation
lack of parliamentary time, the complexity of subject matters, time of emergency - speed/flexibility
Why is the lack of parliamentary time a benefit
Parliament has become involved with a lot e.g. public health, housing, education, safety at work etc.
Parliament had neither time nor the energy to enact all the legislation necessary for the detailed regulation of these activites.
Lord thring said - leaving detailes to be settled departmentally
what is the complexity of subject matters a benefit
pubic interest not best served by legal rules whihc related only imperfectly to the matters to which they were directed.
usually MPs reluctant to legislate specifically on matters which they do no understand
why is the time of emergency a benefit
During wars, terrorism, natural disasters, those in government have to act quickly and are best placed to judge what is required in terms of legislation for the protection of the state and its population
why is the time of emergency in the idea of speed a benefit
regulations may be made more quickly than acts of parliament. thus appropriately in terms of the legal rules needed to deal with pressing and unforeseen circumstances
why is the time of emergency in the idea of flexibility a benefit
impractical and time-consuming if parliament had to pass an act every time it was decided to make a minor alteration (prescription chargers, eligibility to legal aid, etc.)
what are the disadvantages of delegated legislation
alteration of acts of parliament, scrutiny by parliament, scrutiny by courts, misuse of delegated legislation
why is the idea of alteratin an act of parliament a disadvantage
An act might contain a clause which gives to the subordinate law-maker, usually a minister, the power to make legal rules which alter either the terms of the enabling act itself or those in other acts of parliament
why is scrutiny by parliament considered to be a disadvantage of delegated legislation
not all delegated legislation is subject to a close parliamentary scrutiny, nor does it attract great public awareness
why is scrutiny by courts a disadvantage of delegated legislation
usually by judicial review, but: effectiveness of judicial control might be imparied by the owrds of the enabling act e.g.: the minister may make such regulations as he thinks fit
what case proves that the misuse of delegated legislation
Kruse v Johnson
what happened in the case of kruse v Johnson
County council, claiming to act under their statutory powers, made a by law prohibiting from playing music or singing in public etc after being requested by any constable, or an inmate of such house
what did lord russell say in the case of kruse v johnson
If partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, parliament never intended to give authority to make such rules they are unreasonable and ultra vires
what other case other than kruse v johnson proves the misuse of delegated legislation
raymond v honey
what happened in the case of raymond v honey
R, a prisoner, was engaged in legal proceedings when he wrote to his solicitors - the governor, in exercise of his powers, read the letter and decided that it should not be sent to the solicitor
what did the courts hold in the case of raymond v honey
there was nothing int he prison act 1952 that conferred powers to make regulations which would deny, or interfere with the right of a convicted prisoner to have unimpeded access to the courts.
what happened in the case of Ahmed v HM treasury
The orders provided for the freezing, without limit of time, of the funds, eonomic resources and financial services available to persons suspected of financing/preparing an act of terrorism - the effect of the orders was to deprive those persons of all resources
what did the court held in the case of ahmed v hm treasure
by introducing the reasonable suspicion test as a mean of giving effect to the relevant security council resolution, the treasury had exceeded its powers
