Delegated legislation- LAW MAKING (2) Flashcards
what does delegated legisaltion mean
to give a particular people powers to make laws without it having to go through the parlimentary law making process
what is the enabling act
it creates a structure for the law and then delegates powers to others to make more detailed law in the area
what are the 3 types of delegated legislation
- statutory instruments
- orders in council
- by laws
Tell me about statutory instuments
- made by government ministers and departmets
- has national effect
- comes in the form of regulations, orders, rules or codes of practices
- around 3000 are created each year ( MAJOR form of law making)
- introduced by negative or affermative resolution
what is the example of statutory instuments
The rights of the subject, protections of freedoms act 2012.
Tell me about orders in council
- made by the king and privy council
- has national or local effect
- used in times of emergency
- drafted by govt ministers
- used to transfer power between govt departments
what is the example of orders in council
Misuse of drugs act 1971
Tell me about by laws
- made by local authority or public corporation
- has local effect
- must be approved by relevent govt department
what is the example of by laws
the local government act 1972
what is a parent act
gives the right to create one of the delegated legislation.
why do we need to control delegated legislation
Because it is being made by unelected people, which is undemocratic. Parliament therefore need to check the powers it has given away are being used fairly and correctly.
what controls do parliament set on delegated legislation
- enabling act
- scrutiny committees
- laying before parliament (affirmative and negative resolution)
what does the enabling act do
- outlines the powers and boudaries
- prevents abuse of power (ultra vires) / going beyond your power
- DL is void if a body abuses the power under the enabling act
give an example of an enabling act
the police and criminal evidence act 1984
what are the 2 types of scrutiny committees
- delegated powers scrutiny committees
- joint scrutiny committees on statutory instruments
what does the delegated powers scrutiny committee do
scrutinises bills and potential delegated powers, they report the findings, but they have no power to change it.
what does the joint scrutiny committee on statutory instruments do
considers statutory instruments made under the enabling act. can not change them
what are the 2 types of laying before parliment
affermative resolution
negative resolution
what does affermitive resolutuon do
statutory instruments are presented to parliament
requires a vote from both houses to show approval
only becomes law if been approved by a vote
what does negative resolution do
statutory instrument is presented to parliament
There is no vote
laid there for 40 days and if no objections it will become law.
how effective are parliamentary controls
- enabling act sets clear limits to control DL
- scrutiny committees check the proposals before they become laws
- affirmative resolution gives parliament a strong power to control DL
- negative resolution ensures statutory instruments are checked before they come into force
what are the 4 court controls on DL
- ultra vires
- substantive ultra vires
- substantive ultra vires for unreasonableness
- procedural ultra vires
what does ultra vires mean
beyond their power
and has exceeded their powers
what does substantive ultra vires mean
a body has exceeded their powers when making DL
what is the example for substantive ultra vires
fire brigades union
what does substantive ultra vires for unreasonableness mean
a body has gone beyond their powers given to them in the enabling act by making an unfair or unreasonable law.
what is the example for ultra vires for unreasonableness
the Wednesbury case
what does procedural ultra vires mean
the DL has been made following the incorrect processes
what is the example for procedural ultra vires
Aylesbury mushrooms case
how effective are the court controls
- it is hard for the courts to control DL
- the law will already be in force before the courts can check and control it
- courts can declare DL void
- courts provide a check on the law making powers
advantages of using delegated legislation
- saves time and money
- allows the use of expertise when law making
- DL goes through more consultation
- range of controls to monitor and control DL
disadvantages of using delegated legislation
- it is undemocratic
- law making powers can be sub delegated
- there is too much DL for it all to be checked
- the language used in it is too complicated
why do we need delegated legislation
- lack of parliamentary time
- technical expertise can be used
- more extensive consultation
- quicker
- easier to amend/ change
