LA2: Delegated Legislation Flashcards
Power to make Delegated Legislation
Delegated Legislation is the power other bodies have, to delegate laws on Parliaments behalf. This can always be overruled by Parliament but the power is given to certain bodies. For example, Local Authorities, Ministers, Rail Companies and Lord C can all be given power to delegate legislation.
This power comes from an Enabling Act. This is an Act created by Parliament that gives someone the power to make law on their behalf, but only on the subject in the Enabling Act. There are very strict limits on what new laws can be made.
Types of Delegated Legislation:
Orders In Council
Orders In Council:
The most important and powerful pieces of Secondary Legislation.
-These are used to make important laws e.g. ones to comply with EU Law.
- Can make emergency laws.
- Made by Queen and Privy council.
Privy Council-
Refers to Queen and her advisors, who are usually Cabinet Members. Privy Councils are held by the Queen and are attended by Ministers. At each meeting the Queen will approve Orders In Council which have already been discussed and approved by Ministers. Once the Queen approves, then the order is in force. Parliament don’t get the chance to oppose the Orders.
Examples of Orders In Council:
Power to make emergency Law is given under Emergency Powers Act 1920. This Act gave Monarch rights to declare a “State of Emergency” and pass appropriate Legislation.
Emergency Powers (Defence) Acts of 1939 and 1940 gave the Monarch the right to execute War effectively. This means Orders could be used to bring in Rationing, to take homes and vehicles from people for war or to imprison Prisoners of War.
Types of Delegated Legislation:
Statutory Instruments
These are the most common form of Delegated Legislation, totalling about 3000 laws made every year. This Legislation is made by Ministers and Government Departments. They may be called regulations, orders, rules etc. (Enabling Act gives name).
Examples of Acts that Delegate Power to Ministers:
Consumer Protection Act 1987 gives Ministers power to prevent distribution of dangerous goods.
Health Act 2006 gives health Minister power to change age children can buy Tobacco. Children and Young Persons Act 1933 S7 and S4 Children and Young Persons (Protection From Tobacco) Act 1991, are the Enabling Acts.
Types of Delegated Legislation:
By Laws
Types of Legislation made by Local Council and Public Corporations. E.g. Local council can make speed limits on local roads, yellow lines, bus stops or park and ride schemes.
Public Corporations and companies can make laws concerning use of their products/services.
Examples:
British Airways- Laws on smoking in planes and airport, no trespassing on runway etc.
London Underground- Laws on queuing, smoking unacceptable behaviour etc.
Railway Companies e.g. GWR- Laws on train services, stations, safety, crimes etc.
1998 Government of Wales Act established Welsh Assembly (Gov.), which gives Welsh Government the power to create By-Laws concerning only Wales. Uk Parliament delegated 20 areas of Law Making powers to Wales e.g. Health, Education and Social Services.
Control By Parliament
Enabling Act:
Details exactly what must be done to make new legislation e.g. who can make it, who must be consulted and the method by which it must be passed.
Parliament can repeal the Enabling Actant any time.
Example: Fireworks Act 2003-
Minister given power to make regulations but they must:
- Consult Health and Safety Commission and Organisations affected by regulations.
-Consult anyone else they deem appropriate.
- Issue an ‘Impact Assessment’ detailing cost, benefits and wider social/environmental impact.
- must go through affirmative resolution to get regulations passed.
Scrutiny Committee:
HoL has a special Committee for Delegated Legislation that checks too much power isn’t being given away or used inappropriately. There is also a joint Committee for Statutory Instruments (SI’s) called the Scrutiny Committee that looks at SI’s and calls attention to things that may need review.
They will Refer SI’s Back If They:
- Impose a Tax or Charge
- Appear to Have Retrospective Effect
- Appear to go Beyond Power Given in Enabling Act.
If an MP spots an error in a SI, they can bring the matter up during Parliamentary question time or write to the relevant Minister.
Control By Parliament: Laying Before Parliament
SI’s and By-Laws can be approved in three ways;
Affirmative Resolution:
This is where a SI has to be approved by both Houses of Parliament before it becomes Law. Parliament can only approve or withdraw the SI, they cannot amend it. It is up to the Minister to make any necessary amendments.
Super Affirmative:
This is when the Minister must have regard to three things before their legislation is approved. They must have regard to:-
- Any Representation
- Any Resolution by Either House
- Any Recommendations by a Committee of Either House, who might be asked to Report on the Draft SI.
Negative Resolution:
SI will be ‘Laid Before Parliament’ and will become law within 40 days unless it is rejected. This is more popular than Affirmative Resolution, but it means SI’s may not be looked at adequately.
The Legislative and Regulatory Reform Act 2006: This Act sets out procedure for making a SI with are aimed at repealing an existing law in order to remove a 'Burden'. S13 states the Minister Must Consider People and Organisations: - Representative of Interests Substantially Affected by Proposals. - Welsh Assembly in Relation to Welsh Matters or the way the Assembly Exercises Functions. - The LC, Where Appropriate.
Control By Courts
Delegated Legislation is challenged in Court on the ground that it is Ultra Vires.
Ultra Vires- Goes beyond or Misuses Power given so Proposed Law becomes Void.
Judicial Review:
If someone thinks a Case is Ultra Vires he can only bring a case against the authority responsibly if he thinks he has Locus Standi (sufficient right to bring case to court) e.g. if they should have been consulted.
The court can declare the Delegated Legislation is Substantively or Procedurally Ultra Vires and Annul it.
Ultra Vires
Substantive Ultra Vires: Courts will assume that, unless Enabling Act expressly allows it, there is no power to do any of the following: - Make Unreasonably Regulations - Levy Taxes - Allow Sub-Delegation
Example: Strickland v Hayes Borough Council 1896
A By-Law prohibited singing or reciting any obscene song or using obscene language. It was declared Ultra Vires because it was unreasonably, it couldn’t be controlled and it was widely drawn; it covered acts done in private.
Procedural Ultra Vires:
Courts can declare Delegated Legislation Ultra Vires because correct procedure wasn’t followed.
Example: Aylesbury Mushroom Case 1972
Labour Minister had to consult any relevant organisations when creating new laws. He created a law that made a youth training scheme for mushroom growers. He had failed to consult the Mushroom Growers Association, which made up 85% of mushroom growers. They complained against the SI and it became Ultra Vires when in Judicial Review.
Delegated Legislation: Disadvantages
- Parliament aren’t held accountable for the Delegated Legislation.
- It is Undemocratic because Unelected public companies can make laws.
- Ministers often get staff to write the Legislation, which is Sub-Delegation.
- Too much Delegated Legislation is made every year.In 2001, 4266 SI’s were made and took up 13,000 pages in the Statute Book.
- Controls aren’t good enough. Scrutiny Committee cannot amend any Delegated Legislation and abuses of power can go unchecked.
- Impossible to know all the SI’s being passed each year. People may break the Law unknowingly, which cannot be used as an excuse in court.
Delegated Legislation: Advantages
- Parliamentary time is saved E.g. Education Act 1988 introduced National Curriculum and delegated responsibility to what each Key stage would include to a Minister. If Parliament had kept job of working out Key stages, it would have taken months.
- Delegated Legislation allows experts to deal with technical matters.
- Ministers also have the benefit of Further Consultation before Regulations are drawn up.
- It is very Fast, Flexible and useful in Emergency Situations e.g. Foot and Mouth epidemic, 500 Si’s created to stop spreading of disease.
