Delegated Legislation (DL) Flashcards
Delegated Legislation (DL)
P gives someone else (delegates) the power to make some law (legislation)
Enabling Act (EA)
Created by P
Gives guidelines on when public bodies can make laws + P can choose what powers to delegate + which Government Ministers to give powers to
- P can specify how to make the law + where the DL applies
- P can repeal the EA, instantly removing the power of the delegated body to make law
Primary legislation
Example: PACE ‘84
Types of DL
Orders in Council
By-laws
Statutory instruments
Orders in Council
Made by the Monarch and Privy Council
Used to:
- Amend/update laws
- Transfer responsibility between Government departments
- Make law in times of emergency when P isn’t sitting (Civil Contingencies Act 2004)
Privy Council
Senior Government ministers (from HoC and HoL) that meet with the Monarch
Orders in Council Example
The Misuse of Drugs Act 1971 (Amendment) Order 2008
This was an order in council that amended the Misuse of Drugs Act and reclassified cannabis as a Class B drug (previously C)
By-laws
Made by local authorities e.g. County Councils or large public bodies authorised to do so (e.g. rail track, London Underground)
They only apply to the areas over which the council/public body has control
Why do By-laws exist?
Quicker for the public bodies/councils to make the decisions, and they should know the local area/situations better than P would
By-laws examples
traffic regulations
parking
behaviour in public i.e. drinking alcohol on the streets
the ban on smoking on the London underground
Statutory Instruments
Made by Government departments and Ministers - these laws are known as Rules, Regulations or Orders and apply nationally
They can only be made for their area of responsibility e.g. Health Secretary can only make SIs relating to health matters
How many Statutory Instruments are made a year?
around 3000
Why are Statutory Instruments used?
Because the departments + ministers will have expert knowledge on the situation they are dealing with hopefully
Statutory Instruments Example
Police Codes of Practice
MoJ gets to set rules about practices such as stop and search, arrest and detention
He has the authority to make this SI due to PACE ‘84 (an Enabling Act)
Reasons for DL
- P don’t have the TIME to debate every detail of every Act - more laws can be made more quickly
- P won’t always have the necessary EXPERTISE to make the best laws - P are made up of a lot of different people whereas SIs are made specifically by people with expertise in their field
- P may not live in or know of issues in LOCAL AREAS - they only consider national issues. By-laws are made by people who live or work in smaller areas, and so can make laws specific to that area
- DL can be CHANGED OR MADE MORE EASILY allowing quicker response to changing circumstances
Controls by Parliament
Enabling Act for SIs
–> negative or affirmative resolutions
Orders in Council and by-laws are largely unregulated
Negative Resolution
most common procedure
SI is proposed and will become Law unless rejected by P within 40 days
no debate
Affirmative Resolution
less common than the negative procedure - usually applies to important areas of law
debate will follow the introduction and both Houses of P must expressly approve the SI before it can be enacted e.g. changes to the police code in PACE must be approved before they come into force
P cannot amend the SI - it can only approve, or withdraw/annul it
Outline of Negative/Affirmative Resolution
Negative:
SI comes into force unless denied by a negative resolution in P
Affirmative:
SI only comes into force if approved by positive resolution in P
Scrutiny Committee
Reviews and checks ALL SIs
Can draw the attention of both HoP to any SIs which need further consideration
Reasons for referring:
- SI imposes a charge/levy
- SI applies retrospectively (always banned in EAs)
- SI exceeds powers given in EA
- (SI makes unexpected or unusual use of powers)
- (SI is unclear or defective in some way)
They cannot alter any SIs, only refer them to P
Controls by the Courts
Judicial Review
Judicial Review
DL can be challenged in court by a person with sufficient standing or interest in a case
If the court hearing the case (QBD) agrees with the challenge, it can hold the DL to be ultra vires
‘Ultra Vires’
this makes the DL void and means it doesn’t apply
3 reasons for something to be declared ‘ultra vires’
- goes beyond powers given in EA
- DL didn’t follow the correct procedure when being made
- a decision under DL is unreasonable
Ultra vires Cases
R v Home Secretary ex parte Fire Brigades Union
Agricultural Training Board v Aylesbury Mushrooms
R (Rogers) v Swindon NHS Trust
R v Home Secretary ex parte Fire Brigades Union (Ultra Vires)
Home Secretary was allowed to decide the date to introduce the CICS
but he changed the scheme as well as deciding the date to introduce it
He did more than he was allowed to under the EA
Agricultural Training Board v Aylesbury Mushrooms (Ultra Vires)
D was meant to consult any group representing a large amount of mushroom growers, but failed to consult a group representing 85% of them
R (Rogers) v Swindon NHS Trust (Ultra Vires)
The court said it was unreasonable to give different medical tratment to people who had the same medical needs
