English Legal System: Delegated legislation Flashcards
What is delegated legislation?
Delegated legislation is a law made by a person or body to whom Parliament has delegated law making power.
What is a Parent Act?
The Parent Act creates the framework of the law and then delegates power to others to make more detailed law in the area.
Define the two types of legislation
Primary legislation is an act of Parliament.
Secondary legislation is delegated legislation.
Why is delegated legislation necessary?
Parliament does not have the time or expertise to pass every law that is necessary so power is given to other people and organisations to allow those with better local knowledge to pass the laws needed in a given area. It also saves time because it is quicker which is important in a national crisis.
What are the three types of delegated legislation?
By-law: local effect
Orders in council: national effect
Statutory instruments: national effect
What are by-laws?
By-laws are made by local councils and other public bodies to deal with matters which effect their local area.
What is an example of a by-law?
Public corporations, such as train service, are able to impose fines for non-payment of fares.
What are statutory instruments?
Statutory instruments are regulations made by the government ministers/departments to implement the provisions made in acts of Parliament.
What is an example of statutory instruments?
The home secretary is allowed to add more dangerous dog breeds to the Dangerous Dogs Act 1991 if necessary.
What are orders in council?
Orders in council are laws passed by the privy council.
What are the advantages of delegated legislation?
Saves Parliament time
Experts can be consulted
Easy to amend
Ministers can have the benefit of further consultation before regulations are drawn up.
What are the disadvantages of delegated legislation?
Undemocratic
lack of publicity
can lead to difficulty in understanding the law
Name one Parliamentary control.
One parliamentary control is the House of Lords delegated powers scrutiny committee. This is effective because it checks bills during the legislative process and reports their findings. However, they do not have the power to change the legislation, only to advise.
What is judicial control?
Judicial control is when an organisation or member of the public challenges a piece of delegated legislation in the high court on the ground that it is “ultra vires” (beyond their power)
When someone challenges powers under delegated legislation they have to prove they have “locus standii.” What does locus standii mean?
They are directly affected by the delegated legislation.
What are the three different types of judicial review that can take place in the high court?
Procedural ultra vires
Substantial ultra vires
Unreasonable ultra vires
What is procedural ultra vires?
When the body has the power to create DL but they did not follow the correct procedure
What is an example case of Procedural ultra vires?
Aylesbury Mushroom case 1972, the minister didn’t ask the mushroom growers association when delegated legislation relating to them was made.
What is substantial ultra vires?
When the body has gone beyond its powers or done something it never had the power to do.
What is an example of substantial ultra vires?
Strickland 1896, Worcestershire CC made it an offence to use any obscene language in any public place which went beyond the scope of the Parent Act.
What is unreasonable ultra vires?
When the law is so unreasonable that no public body will really do it.
What is an example of unreasonable ultra vires?
Wednesbury Corporation 1948 was the case that set out the standards of unreasonableness of public body decisions that would make them liable to be quashed by judicial review.
What is the Affirmative Resolution Order?
When a Statutory Instrument laid must be actively approved by both houses of Parliament.
