Law Making - Delegated Legislation Flashcards
what is delegated legislation?
where Parliament passes down the law making power to some other person or body.
what is a ‘parent act’?
the authority to pass down the power
also known as an ‘enabling act’
it creates the framework of the law and outlines the power which the body has been given.
what are the types of delegated legislation?
By Law
Order in Council
Statutory Instrument
what is a By Law and what are some examples of its use?
Made by Local Councils or Public Corporations under the Local Government Act 1982.
To make laws that only affect one area.
Examples: parking, dog fouling (council), London Underground rules (corporation)
what is an Order in Council and what are some examples of its use?
Made by the Monarch and Privy Council under the Emergency Powers Act 1920.
Used in emergencies only.
Examples: war & terrorism, foot & mouth disease
what is a Statutory Instrument and what are some examples of its use?
Specialists in field make laws under the Access to Justice Act 1999.
Examples: Education Minister cancelling exams due to COVID, Transport Minister changing speeding laws on motorways.
what are the controls by parliament on delegated legislation?
Enabling Act
Resolution Procedures
Scrutiny Committee
what is the Enabling Act and how does it control delegated legislation?
the transfer of legislative powers from the parent act.
this controls as it clearly outlines the nature and scope of power.
It will also detail who to consult.
what are resolution procedures?
affirmative - won’t become law unless Parliament approve
negative - if the proposed law is not rejected within 40 days it will be law.
super - gives ministers wider powers to amend acts.
what is a scrutiny committee and how does it control delegated legislation?
there are a number of scrutiny committees that scrutinise delegated legislation including The Joint Committee on Statutory Instruments.
They watch over the delegated body and report to Parliament if the see ultra vires. However, they lack power.
What is procedural ultra vires?
this occurs when the body hasn’t followed the correct procedure.
for example, they may not have consulted the relevant people.
what are the controls by the court (judicial controls) on delegated legislation?
Procedural Ultra Vires
Substantive Ultra Vires
Unreasonable Ultra Vires
what case example can be used for ‘procedural ultra vires’?
Aylesbury Mushrooms - the council wanted to build on some land but they didn’t consult the mushroom growers who used that land, which they were instructed to.
what is substantive ultra vires?
occurs when the body goes beyond a parent act.
what case example can be used for ‘substantive ultra vires’?
Fire Brigades Union - D gave out more compensation than was allowed by the Criminal Justice Act 1988.
what is unreasonable ultra vires?
this occurs when the body makes a law that is so unreasonable, no other body would make it.
what case example can be used for ‘unreasonable ultra vires’?
Strictland - a bill was made that banned singing swear words in songs in public and in private.
what are some positive ao3 points on delegated legislation?
- efficient, allows rapid reponses
- often detailed, applicable
- ensures regulations are well-informed
- allows Parliament to focus on national issues
- can be removed easily
- save Parliamentary time/money
what are some negative ao3 points on delegated legislation?
- may not be fully representative of public’s needs and concerns
- less scrutiny
- democratic deficit, less accountability
- potential for abuse
what are some positive ao3 points for delegated legislation controls?
- enabling act gives clear nature and scope
- power is taken away if enabling act is not followed
- resolution procedures ensure the law is still checked
- good for judges to declare ultra vires as official
what are some negative ao3 points for delegated legislation controls?
- enabling act is complicated
- under resolution procedures, Parliament can only vote yes or no, cannot change
