Delegated Legislation Flashcards
What is delegated legislation and what are the types P165
Parliament’s authority to make del leg is usually laid down in a parent act of Parliament known as an enabling Act. Acts create the framework for law and then delegates powers to others to make more detailed law in the area.
Law made by some person or body other than parliament, but with the authority of an Act of Parliament.
The types are: Orders in Council, statutory instruments and by-laws.
What are orders in the council P165 and 167
The Queen and the privy council have the authority to make orders in the council. The privy council is made up of the Prime Minister and senior MP’s. This allows them to pass laws without going through Parliament. Orders in the Council can be made on a wide range of matters such as transferring responsibility between government departments, bring acts or parts of Acts of Parliament into force, giving legal effect to EU Directives, dealing with some aspects of foreign affairs and making law in time of national emergency (when Parliament is not sitting under the authority of the Civil Contingency Act 2004). Also used to update or amend laws for example in 2003 an Order in the Council was used to alter the Misuse of Drugs Act 1971 to make cannabis a class C drug. There must be an enabling act allowing the privy to make Orders in the Council for cannabis it was the Misuse of Drugs Act 1971.
What is an enabling act - on the sheet for delegated legislation
An act that enables all 3 delegated legislation.
Example of the Order in the Council - on the sheet from del leg
Gadaffi was stealing money from Libya - met with the queen on a Sunday afternoon to pass a regulation quickly.
What are statutory instruments and an example - P167
Statutory instruments are rules and regulations made by government ministers under the authority of an enabling act. Ministers (people who have power delegated to them to make law) and government departments are given authority to make regulations for areas under their particular responsibility - amend an act.
Building Regulations 2010.
Statutory instruments are an important way of making law as over 3,000 are made each year.
What are by-laws P167
Law made by local authorities using powers delegated by Parliament to cover matters in their own area - like when dogs can be exercised on the beach. By-laws can also be made public corporations and certain companies within their jurisdiction, such as railway companies can enforce rules about behaviour on their premises.
What is the difference between primary and secondary legislation - On the delegated legislation sheet
Primary legislation - act of parliament/statute
Secondary legislation - amends primary legislation (delegated legislation).
Facts about statutory instruments W15P1
Must originate from an Act of Parliament - primary legislation are drafted to be as broad as application as possible to take into account changes, like technology. Broad wording leaves gaps - secondary legislation fills in those gaps and provides the detail.
The act of Parliament that gives permission for the gov minister to act on it’s behalf is known as a parent or enabling act.
What are the two kinds of control over delegated legislation W15P2
Parliament (parliamentary control) and courts (judicial control)
Control of delegated legislation by parliament
Filler
What are the control by Parliament (checks on the enabling act) P169 and 170
Parliament has the initial control over what powers are delegated as the Enabling Act sets out the limits within which any delegated legislation must be made. For example which government minister can make the regulations, which kinds of laws can be made and whether they can be made for the whole country or only for certain places and whether departments can consult with others before making the regulation.
Parliament retains control over del leg as it can repeal the powers in the enabling act at any time, if it does this the right to make legislation will cease
There are various parliamentary committees which scrutinise del leg, such as the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee in the HOL.
What are the different kinds of control by Parliament P170
Affirmative Resolution - small number of statutes - won’t become law unless specifically approved by Parliament. The need for an affirmative resolution will be included in the enabling act, such as the Criminal Evidence Act 1984. The disadvantage of this procedure is that parliament cannot amend the statutory instrument, it can only be approved, annulled or withdrawn.
Negative Resolution - most statutory instruments, it will become law unless it’s rejected by parliament in 40 days. They are open for parliamentary committees to scrutinise them, but the problem with this is few statutory instruments will be looked at because so many are made.
Super-affirmative Resolution Procedure - this is available if del leg has been made under the authority of the Legislative Reform Act 2006 - parliament is given greater control as the act gives Ministers very wide powers to amend acts which parliament can normally only do under the principle of parliamentary sovereignty.
Questioning of government ministers - individual ministers may also be questioned by MPs in the HOC on the work of their departments. This can be about proposed or current del leg.
What are the scrutiny committees P170
The Joint Committee on Statutory Instruments reviews all statutory instruments and where necessary draw attention of both houses to points that need further consideration, however the review is only a technical one - the main grounds for referring a statutory instrument is: it imposes a tax or charge, has retrospective effect that was not provided for in the enabling act, gone beyond the powers of the enabling act, it makes an unusual or unexpected use of those powers, unclear in some way.
They can only report back their findings, it has no power to alter any statutory instrument. The problem is it’s technical and limited to the points mentioned, they cannot stop it from becoming law but just bring it to the attention of Parliament.
Evaluation of the Parliamentary controls P170
They can only report their findings and have no power to alter any instrument, one problem is the review is only technical, so limited to the points above. Even if the Committee discovers a breach of one of these points, they cannot stop it from becoming law - they can only draw the attention of Parliament to the matter.
There are so many that not all can be given proper scrutiny before they come into force and once it has become into force it’s very hard to remove. Often very technical so may not have the expertise to know whether it has been validly made.
Affirmative Resolution - only affects a few.
Net reg - affects more but no guarantee it will be properly considered.
The enabling act - assumes compliance
Scrutiny committee is a toothless watch dog.
Control by the Courts P170 and 171
Delegated legislation can be challenged in court. It can be challenged by judicial review on the ground that it is ultra vires. This means it has gone beyond the powers given by Parliament in the enabling act.
The ultra vires meaning is ‘the delegated legislation has gone beyond the power given to make it in the enabling act or it has been made after the incorrect procedure has been used or a decision has been made unreasonably. if ultra vires is found the legislation, or decision, will be void and of no effect.
