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.