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
Advantages of DL- numerous controls
Scrutiny committee check SI for Parliament and courts can declare ultra vires
Example:
Correct procedure not followed in ATR v Aylesbury Mushrooms so the court declared DL as void
Ensures DL work how Parliament intended
Disadvantages of DL- undemocratic
Privy council is made up of unelected judges and bishops, SI made of some unelected civil servants.
Example:
SI passed in 2012 by Minister of Justice restricting rights of immigrants to get legal aid. SI was challenged and made ultra vires and wasn’t reflective of public opinion.
Important laws may now not represent what public want
Disadvantages of DL- large volume
3000 SIs and several thousand by-laws made annually without much publicity
Example:
British airports authority passed a by-law stopping passengers from taking tennis racquets on planes. Passenger was fined despite being unaware of this
Impossible for the average person to be aware of these laws
Disadvantages of DL- they can be complex
Can be long and complicated and often requires judges to interpret wording in order to truly understand them
R v Swindon NHS trust court had to decide what was ‘exceptional’ in relation to medical needs
Hard to understand DL and may be unclear how they apply in practice
Disadvantages of DL- controls are not always effective
Scrutiny committee can only refer problems to P and hope they take action. Very few judicial reviews are successful
2018, nearly 3600 reviews were requested but only 184 cases went ahead
May be quite a lot of poorly made DL that is not being resolved properly which is problematic
Types of DL (8)
P pass down law making power
Done through Enabling Acts like Police and Criminal Evidence Act 1984 (PACE)
- Orders in Council
By Queen & Privy Council (senior members of Parliament)
Used to amend old laws and respond to emergencies P can’t (under Civil Contingencies Act 2004)
Eg. Misuse of Drugs Act 1971 Amendment Order 2008 (cannabis to class B)
- By-laws
By local councils or large public bodies like London Underground
Only apply to areas under their control
Eg. London Underground smoking ban
- Statutory instruments
By Gov dept & their ministers
Eg. Minister of justice sets Police Code of Practice (rules on stop and search) under PACE 1984
Roughly 3000 annually apply nationally
Controls on DL (8)
P can control through Enabling Act which can specify, who, how and what they can make law on
P can even repeal EA
- SIs controlled by affirmative/negative resolutions (depending on which specified in EA)
N (common) SI becomes law if not rejected in 40 days
A (used with important DL) require P to approve SI before becomes law (could reject)
- scrutiny committee can refer SI to P
If apply retrospectively, go against EA or use their powers in an unusual way
Can’t alter SI themselves, only refer
- courts can control DL through judicial review
Someone with ‘standing’ wants QBD court to declare DL ‘ultra vires’ making it void
If DL goes behond powers in EA (Home Secretary ex parte Fire Brigades Union)
If DL not made via proper method (ATB v Aylesbury Mushrooms)
If DL unreasonable (Rogers v Swindon NHS Trust)
Effectiveness of controls on DL (12)
Parliamentary controls
Enabling act
- P can set out exact conditions which all 3 types DL can be made
(Who, scope of what DL can cover, somtimes time in which it applies)
If conditions exceeded, can be declared void
P supremacy means D can repeal/ amend EA
Negative resolutions
- approx 3000 SI each year, if no action taken in 40 days, auto becomes law
Likely SI not properly considered as P too busy with other matters (finances etc)
Bad law can easily slip through
- quick process, SI can be passed when needed
Affirmative resolution
- SI has to be specifically approved (vote taken)
Bad law should be picked up on
- takes up P time (defeats point)
- P cannot amend, only accept or reject
Joint Select/scrutiny committee
- check proposed SI to ensure complies with rules of DL
all SI checked
- powers limited
Cant amend/reject only refer
-may not have specialist knowledge to identify bad law
