Delegated Legislation Flashcards
1
Q
What is the definition of delegated legislation?
A
the transfer of power through an Act of Parliament i.e Parent Act / Enabling Act
2
Q
Orders In Council
A
- Queen + Privy Council
- make laws without going through Parliament
- i.e The Terrorism Order 2001 = helps in emergencies
- can amend / update existing law
- i.e Misuse of Drugs Act 1971 = cannabis class C -> B
3
Q
Statutory Instruments
A
- major method of law making
- ministers + government departments
- can amend / update existing law
- i.e raising minimum wage
- create detailed rules and regulations
- i.e Police Codes of Practice adds power to police
4
Q
Bylaws
A
- local authorities
- cover matters within their own area
- i.e The Dog (Fouling of Land) Act 1996 - designated ‘poop scoop’ areas
5
Q
Judicial Controls
meaning of ultra vires + process of judicial review
A
- done through judicial review = individual challenges validity of delegated legislation in court
- court has power to determine piece of legislation was ultra vires i.e void + no effect
6
Q
Judicial Controls
substantive ultra vires
A
- if legislation gone beyond delegated powers provided in Parent Act
- law is void
- i.e ex parte Fire Brigades Union = changes to Criminal Injuries Compensation scheme gone beyond powers in Criminal Justices Act 1988
7
Q
Judicial Controls
procedural ultra vires
A
- correct procedures not followed
- i.e The Aylesbury’s Mushroom case = labour minister not consulting Mushroom Grower’s Association which represented 85% of mushroom growers
8
Q
Judicial Controls
if law is unreasonable
A
- declare ultra vires if law is unreasonable
- using Wednesbury test
- i.e R v Swindon NHS Trust 2006 = unreasonable not to give Mrs Rogers a drug when everyone else was provided with one
9
Q
Judicial Controls
other examples
A
- declare ultra vires if
- contravenes with Human Rights Act 1998
- in conflict with any EU law
10
Q
Judicial Controls [Effectiveness]
A
- more limited than Parliamentary controls = process of judicial review only take place of someone with locus standi + has funds & perseverance to take on a Government department
- Parent Act gives wide powers to ministers = difficult for court to reach finding of ultra vires
- judges unwilling to find legislation to be ultra vires = principle of Parliamentary Supremacy + fear of ‘standing up to the Government’
- The Constitutional Reform Act 2005 = separates legislature and judiciary - Supreme Court takes on interventionist role consistent with constitutional court
11
Q
What are the disadvantages of delegated legislation?
A
- undemocratic
- power transferred to those not elected
- parliamentary controls on how laws are made
- does not follow country’s principles
- sub delegation of powers
- power handed down on another level within gov department
- law described as merely ‘rubber-stamped’
- takes away authority + importance of law
- large volume, lack of publicity
- 3000+ statutory instruments each year
- but rarely given publicity for debate
- difficult for public to discover law
- complex wording
- rules of statutory interpretation + expert witnesses required
- inaccessible to public
12
Q
What are the advantages of delegated legislation?
A
- saves parliamentary time
- 3000 statutory instruments per year compared with 25-50 acts of parliament
- does not have time to consider / debate detailed regulations
- i.e Police codes of Practice = 8 detailed codes
- can spend time dealing with policies behind law
- access to technical experts
- i.e The Air Navigation Order 1995 = 140 pages of highly technical rules
- legislation effective + practical in application
- local knowledge
- bylaws relying on council’s local knowledge
- aware of complaints in area
- i.e The Dog (Fouling of Land) Act 1996
- parliament does not have depth of local knowledge to legislate effectively
- consultation
- rules on technical matters
- i.e road traffic laws = consult police
- often statutory instruments
- less controversy; input of opinions
- quick
- cannot pass law quickly in emergencies
- 9/11 attacks -> order in council passed -> to stop funding of terrorism under The Terrorism Order 2001
- crises averted when required
- easily amend / revoke
- keeps law up to date
- i.e monetary limits change each year = minimum wage
- ministers respond quickly to new situations by introducing statutory instrument
- eases pressure on Parliament
13
Q
Parliamentary Controls
Parent Act
A
- delegated legislation controlled through Parent Act
- Act outlines who can create legislation / type of laws made / if consultation is needed etc.
- Parliament holds ultimate control
- can amend / repeal Parent Act = removes rights for others to make legislation
- Statutory Instruments Act 1946 = all statutory instruments must be published
14
Q
Parliamentary Controls
Affirmative resolutions
A
- can be used with statutory instruments
- becomes law if approved by Parliament within 28-40 days
- need to use control outlined in enabling Act
- i.e where amendments made to Codes of Practice under Police and Criminal Evidence Act 1984
15
Q
Parliamentary Controls
Negative resolutions
A
- statutory instrument becomes law
- unless rejected by Parliament within 40 days
- within 40 days = MP can annul DL
16
Q
Parliamentary Controls
Super-affirmative resolution procedure
A
- available if DL made under authority of Legislative and Regulatory Reform Act 2006
- rarely used
- gives powers to ministers to reduce legislative burden
- i.e financial cost
- and can change AOP
- individual minsters questioned by MPs on propose DL
17
Q
Parliamentary Controls
Scrutiny committee
A
- main committee = Join Committee on Statutory Instruments
- reviews all statutory instruments
- draws attention to Parliament areas needing further consideration
- other scrutiny committees i.e the Regulatory Reform Committee, House of Lords Delegated Powers Scrutiny Committee
18
Q
Parliamentary Controls (A03)
A
- parliament has ultimate control over delegated legislation through Parent Act
- controls how and what laws can be made
- accountable to gov ministers
- specified in Parent Act that negative / affirmative resolution must be used as control
- limited effectiveness ~ sheer volume of DL created yearly (3,500-4,000 per annum)
- affirmative resolution rarely used = Parliament not having expertise to know if DL should be passed; controls small amount
- negative resolution = viewed as formality than effective control
- scrutiny committee provide control of expertise
- likely to have specialist knowledge
- limited effectiveness of control
- no powers to amend law
- unsatisfactory delegated legislation passed
- Parliament not having time to amend
