Delegated Legislation Flashcards
What is delegated legislation
To hand down/pass on the ability to make law
Which Act allows people to make law
Enabling Acts
Example: PACE 1984 - allows minister of justice to set police code of practice
3 types of delegated legislation
Orders in council
By-laws
Statutory instrument
Orders in council
Queen and her privy council make them. It makes law making a quicker process. It is used to amend or update old laws, give effect to EU directives, make law in times of emergency and to transfer responsibility. Example: misuse of drugs act 1971 (amendment) order 2008. Made cannabis class B drug
By-laws
Any local authorities eg. County councils can make them. They only apply to the area in which the public body has power over. They are quicker and councils have better awareness of which laws are needed in their area.
Example: ban on smoking in London Underground
Statutory instruments
Made by government departments or their minister. Known as rules, regulations or orders. They apple nationally. They can only make laws on their area of responsibility. 3000 made a year. These departments have expert knowledge and save time.
Example: Police codes of practice by the minister of justice
Reasons behind delegated legislation
Saves time in general
Specific expertise
Awareness of certain areas
Change/ make laws and adapt easier in times of emergency
Parliamentary controls over delegated legislation (only apply to statutory instruments)
Enabling Act, negative resolutions, affirmative resolutions, questioning of government ministers, scrutiny committee
Enabling Act
- choose what powers to delegate
- decide who to give power to
- who they need to consult/ how they make the laws
- where the law applies
- repeal the enabling Act
Negative resolutions
Commonly used
It will become a law unless rejected by Parliament in 40 days
Affirmative resolutions
Used on Acts with special importance
Person will announce, debate will take place, both houses will vote
Questioning of government ministers
Government minister being questioned by p
Scrutiny committee
Review all statutory instruments Can draw the attention of both houses Can refer back to parliament if: It imposed a tax Applies retrospectively If it goes beyond its powers in enabling act If it makes an unexpected or unusal use of powers If it’s unclear/defective Limitations: cannot alter, only refer
Control by the courts: judicial review
Parliament is supreme so they cannot challenge the enabling Act, but can challenge someone with interest or standing in the case
Court can decide delegated legislation is ‘void’ by declaring it ‘ultra vires’ in 3 situations:
1.goes behind powers of Enabling Act
2.did not follow correct procedure when made
3.decision from the DL has resulted in unreasonable outcome
Case where DL goes beyond powers
R v Home Secretary ex parte Fire Brigades Union (1995)
Criminal Justice Act 1988, the Home Secretary was allowed to decide the date to introduce the Criminal injury Compensation Scheme. However, the Home Secretary made changes before introducing the scheme.
Case where DL did not follow the correct procedure
Agricultural Training Board v Aylesbury Mushrooms
Minister of Labour tried to introduce new regulations for the training of mushroom growers. Before, he was required to consult ‘any group representative of substantial employees engaging in the activity concerned’. He did not consult the mushroom growers association, which represented 85% of all mushroom growers in the UK.
Case where a decision was made until DL which was unreasonable
Rogers v Swindon NHS Trust
Miss Rogers had breast cancer and needed to take the drug ‘herceptin’. It was not yet approved and her NHS trust said women with breast cancer could only get funding for this drug in exceptional circumstances and said her case was not exceptional. The court said it is wrong to draw a distinction between women with breast cancer if their needs are the same and so the rule was unreasonable.
Parliamentary controls: negative resolutions- effective or not effective
Effective: quick and easy
Not effective: easy to let mistakes pass through
Parliamentary controls: affirmative resolutions- effective or not effective
Effective- forced to analyse and make conscious decision to allow it and therefore harder to allow mistakes through
Not effective: takes more time
Parliamentary controls: scrutiny committee- effective or not effective
Effective- might catch any mistakes and prevent bad law
Not effective: only refer law to Parliament , can’t change anything themselves or make any certain impact
May not have specialist knowledge of law
Judicial controls: judicial review- effective or not effective
Effective- different ways to prove ultra vires. Court can hear expert witnesses
Not effective- only someone who has experienced this law badly can bring up the case. Reactive not proactive.
It’s extreme: declared void, no inbetween can’t alter only abolish.
Single individual going against a public body with lots of money and resources makes it hard to win the case
Advantages of DL- saves Parliament’s time
Allowing other bodies to make law saves their time as P takes a lot more time to make laws due to the whole process of debates
Example: Health and safety Act 1974
Enabled the Minister of Work and Pensions to make regulations through statutory instrument
Allows p to concentrate on other matters, such as financial budgets and brexit. Means laws keep up with advances and necessary changes
Advantages of DL- specialist knowledge
Allow specific Government departments to make rules in their area of specialty
Example: Pace 1984
Allows Minister of Justice to set Police codes of practice using his understanding of the criminal justice system.
Rules have to be complex and require specialist knowledge to understand. Difficult for parliament to have this depth of knowledge for specific areas
Advantages of DL- local knowledge
By enabling local councils to make by-laws, they can assess the particular needs of the locals and introduce law to deal with the issues
Example:
If there was a problem with excessive drinking in certain parts of town, they could pass a by-law to make that an alcohol free zone
Law can be made by people who know the local area well and have best understanding of how to solve vs Parliament who are distant from these issues
