Delegated Legislation P3 Flashcards
What is delegated legislation
Law made by some person or body other than Parliament but wuth the authorisation of Parliament
What is the name of primary legislation that gives authority for the delegated legislation to be made
The Parent Act (Enabling)
What is one example of a Parent Act
Road Traffic Act 1988
How many types of delegated legislation are there
4
What are the 4 types of delegated legislation
Statutory instruments
By-laws
Commencement orders
Orders in council
What are Statutory instruments
Laws made by government ministers
Minitrial regulations - relevant government ministers will use power of The Parent Act to create a law
Aproximately 3000 brought in each year
Used to update laws e.g National minimum wage Act 1998
What are Commencement orders
A form of Statutory instrument
Bring into force part or all of an Act of Parliament
Access to Justice Act 1999 - subjected to 10 of these orderes before whole act came into force
What are By-laws
Made by local authorities or public corporations affecting their local area E.g Local Government Act 1972
Laws that affect whole county
City- town- or district-council can pass laws affecting that city, town or district
What are 2 positives about By-laws
Saves time - approved by relevant minister rather than going through Parliament
Can deal with local issue
Can public bodies/ companies make by-laws
Yes
They can make laws regulating behaviour
E.g Railways Act 1993 - issue by-laws concerning the behaviour of the public on there stations and trains
Who deals with breachs of By-laws
Magistrates
What happened in the case of Boddington V British Transport Police 1988
D smoking on a train where it was banned by delegated legislation (by-laws). D tried to argue it was unlawful
Held: ban was lawful
What are the Orders in council
The Privy council comprised of 420 memebers - 3 or 4 privy councillors meet with monarch to give formal approval to orders drafted by government
What powers do the Orders in council have
Emergency Powers Act 1920 and Civil Contingencies Act 2004
Make laws in times of emergency or when parliament is not sitting - summer recess
Can be used to transfer responsibility between governments
What is an example of an Order in council which went through
Burial Act 1853 - provide for the closure of churchyards which no longer have room for burials
What are the two ways to control Delegated legislation
Judicial control
Parliamentary control
What are the three Judicial controls for Delegated legislation
Substantive Ultra Vires (Judicial Review)
Procedural Ultra Vires (Judicial Review)
Reasonableness
What is Judicial Review
Process which decision made by government minister or local councils can be assessed by the courts to see if the correct procedure has not been followed
What are Ultra vires
‘Go beyond the powers’ - either be substantive or procedural
What is Substantive Ultra vires for Judicial controls of DL
When a piece of DL has gone beyong the power given by parliament - declared void
What did the case of Attorney - General V Fulham Corporations (1921) involve
Corporation given power to provide washhouse facilities only and instead built a laundrey where it employed people to do the work - help to be Substantive Ultra vires
Which case stated: Even if powers of delegated legislation are granted to a government department in subjective term, the courts may nonethless determine the limit of those powers
Customer & Excise Commissioners V Cure & Delley Ltd (1962)
What are Procedural Ultra vires for Judicial controls of DL
A piece of DL has been passed without following the procedure set out by the parent act
Which case is used for Procedural Ultra vires for not consulting ‘any organisation… appears to him to be representative of substantial numbers of employers enaging in the activity concerned’ and they didnt
Aylesbury Mushroom (1972)
What is Unreasonableness for Judicial controls of DL
There is no power to make unreasonable regulations, to allow sub-delegation or to interfere with the basic rights if citizens e.g freedom of speech
Which case established ‘Wednesbury unreasonableness’
Associated Provincial Picture Housees V Wednesbury Corporation (1948)
What is the main case example of Unreasonableness
Strickland V Hayes Borough Council (1986)
What are the limits to Judicial control of DL
Needs someone to be willing to pursue the matter to the Bench division of the High court
Expensive
Rare courts will conclude a piece of DL is invalid for being vague or so irrational
What are all the parliamentary controls for DL
Parent Act
Affirmative resolution
Negative resolution
Scrutiny Committee
Question time
What is the Parent Act as a parliamentory control for DL
Parliament can repeal or amend DL and also remove power from bodies via the Parent Act
What is the Affirmative resolution as a parliamentory control for DL
Parliament must specifically approve statutory instruments with 20-40 days to do so
What is the Negative resolution procedure as a parliamentory control for DL
Parliament do not have to specifically approve them
law remains in force unless rejected by parliament
40 day rule to do so
What is the Scrutiny committee as a parliamentory control for DL
Look at all statutory instruments and decide if any of them should be brought to the attention of both houses
What is Question time as a parliamentory control for DL
Responsible ministers can be questioned by parliament
Gives publicity to DL due to presence of media and makes the justify proposals
What are the limits to Parliamentory control of DL
Not possible for scrutiny committee to review all statutory instruments
Scrutiny committee has no power to change statutory instruments and issues raised can be ignored by ministers - Hansard Society
Negative resolution procedure - not brought attention to wide number of MPs
Affirmitive resolution - time consuming and parliament cannot amend statutory instruments, only withdraw, approve or annulted and long winded
Experienced MPs are used to dodging questions during question time
