Law-Making - Delegated Legislation Flashcards
Explain Delegated Legislation
-A law made by some person or body other than parliament, using authority of Parliament
-Set out under a ‘Parent’ Act, known as enabling Act E.G (Police and Criminal Evidence Act 1984)
Orders in Council
-Queen and Privy council have authority to make Orders in Council
-Mainly made up of Senior politicians who are current or former members of either the HOC or HOL
-Allows GOV to make legislation without it having to be debated or voted on in parliament
-Can be used to make law in emergencies under the Civil Contingencies Act 2004
Statutory Instruments
-Rules and regulations made by GOV ministers
-Each department deals with different areas of law
-Can be short covering single points
-Eg.Chemicals (hazard information and packaging for supply) Regulations 2009.
By-Laws
-Can be made by local authorities to cover matters within their own area.
-Usually made under Local Government (miscellaneous Provisions) Act 1982
Eg. - Local by-laws involve traffic control
Control by parliament
-Control over the Parent Act
-Enabling Act set out limits within which any delegated legislation must be made
-Parliament can repeal the powers in enabling act at any time.
Negative Resolution Procedure
-Most statutory Instruments will be subject to a negative resolution.
-Relevant Statutory Instrument will become law unless rejected by parliament within 40 days of publication
Affirmative resolution Procedure
-Small number of statutory instruments will be subject to this procedure
-Statutory instrument will not become law unless specifically approved by parliament
-Disadvantage - Cannot be amended, only approved, withdrawn or annulled
Scrutiny by Committee
-Bodies that check on Statutory Instruments
-E.G, Joint committee on statutory instruments, Secondary legislation scrutiny committee in HOL
-Can only check legislation once it has been made and is in force
-Reasons for referring a SI to parliament= Gone beyond power of powers given, Unclear or defective in some way, Makes unusual or unexpected use of powers.
Control by courts
-Judicial Review
-Procedural Ultra vires
-Substantive ultra vires
-Wednesday unreasonableness
Explain Control by courts through judicial review
-Piece of DL can be challenged in court
-Will be heard in QBD Divisional court usually by two judges
-Person making challenge must have sufficient standing or interest in case, directly affects by the legislation
Explain Procedural ultra vires
-It is ultra vires because correct procedure set out by enabling act has not been followed
E.g, Aylesbury mushrooms case
Explain substantive ultra vires
-When a rule making body has no substantive power under empowering act.
-E.G, R v Home Secretory ex parter fire brigades union
Explain Wednesday unreasonableness
-When a decision is so unreasonable that no reasonable body or authority would ever consider imposing it.
-If test is met, decision will be ultra vires and void
-set in case of Associated picture houses v Wednesday corporation
ADV of Delegated Legislation
-Time saving - Can be made quicker in emergency, not have to go through lengthy stages of parliament. Privy council can meet quickly in time of emergencies under civil contingencies act 2004
-Gov Ministers have expert knowledge on area of legislation where parliament may not
-Parliamentary and judicial control over DL allow to avoid abuse of power
-DL an be easily amended or revoked without use of parliament. EG, Minimum wage update each year
-Local councils can deal with specific issues to their area
DIS of Delegated legislation
-Removes democracy- Takes law making away from elected HOC
-Sub delegation- GOV ministers may had DL further down, may not be done properly
-Control by parliament is not always effective - very few affirmative procedures as MPs do not have time to look over all SI
