Delegated Legislation - Law Making Flashcards
What are the advantages of Delegated legislation
- It saves parliamentary time - parliament doesn’t have time to consider and debate every small detail of complex regulations. Making such regulations through DL saves time
- Access to technical expertise - it is impossible for members of parliament to have all the knowledge needed to draw up laws on complex areas. By using DL the necessary experts can be consulted
- Allows consultation - ministers can have the benefit of further consultation before regulations are drawn up. Consultation is particularly important for technical matters where it is necessary to make sure regulations are technically workable
- Allows quick law making - the process of passing an act of parliament can take a considerable time and in emergencies parliament may not be able to pass law quickly enough.
- Easy to amend - DL can be amended or revoked easily when necessary to keep law up to date
What are the disadvantages of Delegated legislation
- Undemocratic - the main criticism is that DL takes law making away from the democratically elected House of Commons and allows non elected people to make law. This criticism can’t be made of local authorities as they were elected in.
- Sub-delegation - this means that the law making authority is handed down another level. This causes comments that much of our law is made by civil servants and merely rubber stamped by the minister of that department.
- Large volume and lack publicity - the large volume of DL also gives rise to criticism since it makes it difficult to discover what the present law is. The problem is aggravated by a lack of publicity as much DL is made private and passed through parliament without debate
- Difficult wording - DL shares with acts of parliament the same problem of complex and obscure wording that can lead to difficulty in understanding
What is delegated legislation
It is law made by some person or body other than parliament but with the authority of Parliament
What are the three types of DL
Order in council, statutory instrument and by-laws
What is statutory instrument
Statutory instrument is when minister and government departments are given authority to make regulations for areas under their particular responsibility
What is order in council
Order in council is when the queen and privy council have the authority to make order in council. The privy council is made up of the PM and other leading members of the gov. This type of DL allows the gov to make laws without going through parliament
What are by laws
These are laws made by local authority to cover matters within their own area
How is delegated legislation established
It is established by a parent act of parliament which gives certain bodies the right to issue delegated legislation
What authority do ministers need to make rules and regulations
They need the authority of an enabling act which simply gives them the authority to issue these declarations in the original act
What is Ultra Vires
This is when the courts deem that DL has gone beyond the power given to it in the enabling act for example in the R v Swindon NHS trust case
How is delegated legislation controlled
- there are checks on the enabling act which sets out what ministers can and can’t do. Parliament can revoke these powers at any time
- affirmative resolution which means statutory instrument must be approved, annulled or withdrawn
- Negative resolution which is where statutory instrument becomes law unless rejected 40 days after by parliament
- questioning of government ministers
- scrutiny committees which scrutinise the technicalities of statutory instruments not policy
