Law Making Delegated Legislation Chp4 Flashcards
Delegated legislation
Law made by some person or body other than Parliament , but with the authority of Parliament
Enabling act
Gives right to create a delegated legislation
Types of delegated legislation
Order in council- made by privy council
Statutory instrument- mad by government minister
By-law - made by local authorities
Orders in council
Made by king and privy council
E.g the misuse of drugs act 1971 amendment order 2008
Privy council has power to make laws in emergency’s under the civil contingencies act 2004
The constitutional reform act 2005 allows the privy council to alter the number of judges in the Supreme Court
Statutory instruments
Rules and regulations Made by governments ministers
E.g codes of practice under PACE
By-laws
Made by local authorities or public corporations
E.g local parking regulations
Control by Parliament on delegated legislation
Enabling act
Parliament can check what has been allowed through the enabling act and can revoke powers at any time.
Delegated powers scrutiny committee in the House of Lords which considers whether the provisions of any bills going through parliament delegate legislative power inappropriately. Reports findings to House of Lords before committee stage of the bill but it has no power to amend the bills.
Control by Parliament on delegated legislation
Affirmative resolutions
A small number of statutory instruments will be subject to an affirmation resolution. So the parliament must agree to them this will have been outlined in the enabling act. W.g for a new codes of practice under the police and criminal evidence act 1984.
Control by Parliament on delegated legislation
Negative resolutions
Most statutory instruments will be law unless rejected by Parliament within 40 days. So many unlikely to be looked at by MPs.
Parliaments control over delegated legislation
Questioning of gov ministers
Individual ministers by be questioned
Parliaments control over delegated legislation
Scrutiny committee
Joint select committee of statutory instruments
Reviews all statutory instruments and draws attention of House of Commons and laws to pints that need further consideration. Main grounds for referring are: imposes a tax or charge only an Lecter body has this right, appears to have retrospective effect which was not provided by enabling act, appears to have gone beyond the powers given under enabling legislation, makes some unusual or unexpected use of powers, unclear or defective in some way.
Can only report back findings no power to alter statutory instrument
The legislative and regulatory references act 2006
Sets procedure for making sure instruments don’t have any burdens
Burden: a financial cost , an administrative inconvenience, an obstacle to efficiency productivity or profitability, a sanction criminal or otherwise which affects the carrying on of any lawful activity
Any minister must consult:organisations representative of interests, the Welsh Parliament in relation to matters upon which the assembly exercises functions, the law commission where appropriate
Negative resolution procedure: if a minister recommends this it will be used within 30 days unless parliament objects,delegative resolution will not be a law until has been laid before parliament for 40 days.
Affirmative resolution: requires both Houses of Parliament to approve order
Super-affirmative procedure: gives Parliament more control a d wise powers to amend acts.
Ultra fires
It goes beyond the powers that Parliament granted in the enabling act. Where any delegated legislation is ultra views it is not valid law.
Control by courts over delegated legislation
May be challenged through judicial review or arise in a civil claim e.g r v Home Secretary ex parte fire brigades union 1995. Unless stated in enabling act will not allow any power to make unreasonable regulations, levy taxes or allow sub delegation
Courts can also hold a delegated legislation ultra fires if proper procedure hasn’t even followed.
Aylesbury mushroom case 1972
The minister of labour had to consult any organisation appearing to him to be representative of substantial …… his failure to consult the mushroom growers association, which represented about 85% of all mushroom growers meant that his order establishing a training board was invalid as against mushroom growers tho void in relation to others affected by the order like farmers s has consulted the national farmers union.
