Law making - Delegated legislation Flashcards
What is delegated legislation?
Delegated legislation is where parliament gives powers to other bodies to make laws on their behalf
What are the three type of Delegated law?
- Bylaws
- Statutory instruments
- Order in the council
What are Bylaws?
Bylaws are laws made by local councils or public bodies. (Local gov act 1982)
It includes bylaws restricting alcohol in public and dog waste and litter. (R v Fadol feet of train seat)
What are Statutory Instruments?
Statutory Instruments are laws made by the government ministers + heads of government departments. Will have a parent act to initially pass the power to the department which includes what they can change.
Dangerous Dog act (parent act example)
What are Order in Council laws?
Order in the council are laws made by the King and privy council without the need of a debate. They can make laws if:
1- It is an emergency
2- To give effect to EU directives
3- To transfer responsibility between departments
4- To bring act or parts of acts into force
What are the reasons for delegated legislation?
- Time:
Allows parliament more time to deal with urgent issues (national covid) - Local knowledge:
With bylaws the local councils will have a better idea on what laws need to be put in place in their areas - Expert knowledge:
With Statutory instruments, the heads of government departments should have expert knowledge in specific areas of the law (PACE) - Emergency/ Speed:
Parliament can take months to introduce a new law, whereas SI’s and CIC’s can be passed in hours or days. However parliament showed they can do this too. (Coronavirus Act) - Flexibility:
The set process of PLM does not have to be followed by delegated bodies - Future needs:
Acts or parliament can be future proofed by allowing by allowing a process to amend them through SI’s
How does parliament control delegated legislation?
Parliament controls delegated legislation by checking laws before they are passed. FOUR WAYS:
- Parent Act
- Scrutiny committee
- Positive resolution
- Negative resolution
What is a Parent Act?
Parent Act:
Includes rules on how the delegated bodies make laws - including who has the power, what they have power to do and the process they need to follow to create delegated legislation.
What is Scrutiny committee?
Scrutiny Committee is a joint select committee on statutory instruments and they review all SI’s and will refer them to parliament if the , impose tax, are retrospective or go beyond the powers granted.
What is a Positive Resolution?
If a parent act is put through positive resolution it will need to be signed off by parliament before it can become a law.
What is a Negative Resolution?
If the parent act goes through negative resolution, then the law only needs to be laid before parliament for 40 days and will be become a law if it is not rejected. This includes the law being proposed to the public.
What are judicial controls on delegated legislation?
Judicial controls are how the courts check DL after the law has been passed.
- Requires someone with standing (The rights to bring the case before the courts)
- The courts then decide if the body making the law has acted Ultra Vires (Beyond the power)
What is procedural Ultra Vires?
When the body has not followed the correct procedure in passing the law - Aylesbury Mushrooms
What is Substantive Ultra Vires?
When the substantial content of the law is beyond what they were given the power to do - AG v Fulham Corp
What is Wednesbury unreasonableness?
Wednesbury unreasonableness requires more than just unfairness - the law must be so unreasonable that no reasonable person would think of it - APPH v Wednesbury.
What is the effectiveness of delegated legislation?
–> The scrutiny committee can check a number of statutory instruments, however scrutiny committees can only refer back to House and cannot force them to change the law.
Positive resolution: There is at least some debate in parliament and it is checked by parliament, but requires time, which defeats the point of delegating power.
Negative resolution:
Majority of DL uses this but means some laws may not be checked at all and become law by default, However this saves time
Parent Act:
Effective as it lays out rules and procedures to be followed by whom - can be repealed if the power is abused, STATUTORY INSTRUMENTS ACT, However wording can be manipulated.
