Law making: delegated legislation Flashcards
Types of delegated legislation
Orders in council, by laws, statutory instruments
Orders in council:
Orders in council are made by the Privy Council and are used to give legal effect to decisions made by the government or the monarch. They are often used to implement international treaties or agreements, and can also be used to make emergency regulations in times of crisis. Orders in council are typically used for matters that require swift action and cannot wait for primary legislation to be passed.
e.g. misuse of drugs act - cannabis
By Laws
Bylaws are regulations made by local authorities or public bodies such as transport authorities, health trusts or university boards. They are used to govern local matters that are not covered by national legislation, such as parking regulations, building standards or the use of public spaces. Bylaws are enforced by the relevant authority, and are typically subject to public consultation before they are implemented.
traffic control, parking restrictions, banning drinking in public places
Statutory instruments
Statutory instruments are the most common type of delegated legislation, and are made by ministers or government agencies under the authority of an Act of Parliament. They are used to implement detailed rules or regulations that are necessary for the effective operation of an Act of Parliament. Statutory instruments can cover a wide range of topics, from health and safety regulations to tax rules and environmental standards.
minister for work and pensions - regulations about work
minimum wage change
building act 1984
What is secondary legislation?
Statutory instruments are the most common type of delegated legislation, and are made by ministers or government agencies under the authority of an Act of Parliament. They are used to implement detailed rules or regulations that are necessary for the effective operation of an Act of Parliament. Statutory instruments can cover a wide range of topics, from health and safety regulations to tax rules and environmental standards.
fill in practical details of the act
What is secondary legislation?
Secondary legislation is law created by ministers (or other bodies) under powers given to them by an Act of Parliament (primary legislation).
What are parliamentary controls?
Parliamentary controls include “affirmative resolution procedures” where the legislation requires approval in both houses of parliament and “negative resolution procedures” where the legislation may be vetoed by either house
Why is delegated legislation used?
it avoids overloading the limited Parliamentary timetable as delegated legislation can be amended and/or made without having to pass an Act through Parliament, which can be time consuming. Changes can therefore be made to the law without the need to have a new Act of Parliament and it further avoids Parliament having to spend a lot of their time on technical matters, such as the clarification of a specific part of the legislation. Secondly, delegated legislation allows law to be made by those who have the relevant expert knowledge. By way of illustration, a local authority can make law in accordance with what their locality needs as opposed to having one law across the board which may not suit their particular area. A particular Local Authority can make a law to suit local needs and that Local Authority will have the knowledge of what is best for the locality rather than Parliament. Thirdly, delegated legislation can deal with an emergency situation as it arises without having to wait for an Act to be passed through Parliament to resolve the particular situation. Finally, delegated legislation can be used to cover a situation that Parliament had not anticipated at the time it enacted the piece of legislation, which makes it flexible and very useful to law-making. Delegated legislation is therefore able to meet the changing needs of society and also situations which Parliament had not anticipated when they enacted the Act of Parliament.
how do we control DL (before)
enabling act - sets out the limits, parliament can repeal the act
delegated powers scrunity committee =reported at committee stage
how do we control DL (during)
affirmative resolution and negative resolution
what is affirmative resolution
the si needs to be specifically approved by parliament to become law. set out in the enabling act, it can be approved, annulled or withdrawn.
what is negative resolution?
the si will become law unless it is rejected by parliament within 40 days
what is the joint select committee on statutory instruments
scrunity committee, reviews all SIs, refers them back to the houses
the grounds for referral are:
imposes a tax or charge
appears to have retrospective effect
goes beyond powers of the enabling act
makes unusual use of powers
unclear of defective
they cannot change the SI, but draw attention to it
what are the 3 possible procedures set out by the legislative and regulatory reform act?
negative resolution - laid out for 40 days
affirmative resolution - approved by both houses
super affirmative resolution procedure - must consider both houses and recommendations from the draft
how do we control dl after by the courts
ultra vires - the dl goes beyond the powers that parliament granted in the enabling act
any legislation that is ultra vires is null and void
R v Home Secretary, ex parte fire brigades union - ultra vires - went beyond powers of the criminal justice act 1988
aylesbury mushroom - did not follow procedure in enabling act / ultra vires
strickland v hayes borough council - singing = unreasonable /ultra vires
what three cases demonstrate ultra vires
R v Home Secretary, ex parte fire brigades union - ultra vires - went beyond powers of the criminal justice act 1988
aylesbury mushroom - did not follow procedure in enabling act / ultra vires
strickland v hayes borough council - singing = unreasonable /ultra vires
why do we use DL?
allows detail to be added to laws
allows for expert knowledge
allows for local knowledge
advantages of DL
saves time and money
access to technical expertise
allows consultation
allows quick law making
easy to amend
provides flexibility, allows for expertise, reduces workload on Parliament, and enables localization of laws, thus making the legal system more efficient, responsive, and adaptable
disadvantages of DL
undemocratic
sub delegation
large volume of SIs
lack of publicity
difficult wording
Insufficient parliamentary scrutiny, overuse, confusion, and negative impact on individual rights.
