delegated legislation (P3) Flashcards
What is delegated legislation?
when parliament delegates some of its law-making powers to secondary bodies, allowing them to make new laws on parliaments behalf
how is parliament able to delegate its power?
an act of parliament is passed giving the secondary body the power to carry out tasks (parent acts/enabling acts)
these should be clear, unambiguous and give ‘what’ and ‘how’ instructions that are open to little interpretation
what are the three types of delegated legislation?
-orders in council
-statutory instruments
-by-laws
what are orders in council?
-secondary body is the privy council
-can be a quick response in emergencies
-the civil contingencies act 2004 allows PC to make law in times of emergency when parliament isn’t sitting
what are statutory instruments/ministerial regulations?
-secondary body is government ministers
-over 3000 made a year
-leave law making to departments that have expertise and responsibility in the areas
-eg police powers are made by the ministry of justice under the police and criminal evidence act 1984
what are by-laws?
-secondary body is local authorities and public corporations
-parliament doesn’t have the time or local knowledge to deal with these
-eg no ball games, no parking, no skateboards etc
what is an affirmative resolution order (ARO)?
-part of a parent act that is subject to parliamentary scrutiny and a vote before coming into force, used in controversial areas
what must parliament do in the absence of an ARO?
parliament has 40 days to pass a negative resolution order to prevent an SI from coming into force
if the deadline is missed, only primary legislation or repealing the parent act can remove the delegated legislation
what does the delegated powers scrutiny committee do?
-part of the house of lords
-considers the provisions of any bills going through parliament delegate legislative power inappropriately, reporting the findings to HoL before the committee stage of the bill
-has no power to amend bills
what is the joint scrutiny committee?
-role is to scrutinise SI’s
-looking for retrospective liability issues, bad wording or attempts to impose taxation
what is ultra vires?
-‘beyond the powers’ i.e. the secondary body has exceeded the powers given to it
what is required judicially for delegated legislation?
-a party affected by the delegated legislation must apply to the king’s bench division of the high court for judicial review
-can result in finding the delegated legislation to be ultra vires
-judicial review can also conclude a piece of delegated legislation is without legal effect because it’s ‘outrageous in its defiance of logic’ (wednesbury unreasonableness)
what are the two types of ultra vires?
-procedural UV - secondary body has exceeded its powers and failed to follow the procedural instructions of the parenting act
-substantive UV - the secondary body has gone beyond the powers granted to it and made more regulations than permitted
what are some advantages of delegated legislation?
-saves parliamentary time
-can respond quickly to emergency situations
-parliament can concentrate on producing parent acts
-local people are experts in local issues
-often used as a fast way of implementing directives from the EU
what are some disadvantages of delegated legislation?
-lacks publicity, hard for public to keep up with new laws
-parliamentary controls aren’t always effective, scrutiny committee cant scrutinise everything
-causes dangers
-judges can void through ultra vires, so doctrine of parliamentary sovereignty is eroded
-not a democratic source of law
-judges can’t exercise control unless a member of the public takes legal action, which is time consuming and expensive
