Law making - delegated legislation (paper 2) Flashcards
What is delegated legislation?
Law made by some person or body than Parliament, but with the authority of Parliament
The authority is usually laid down in a ‘parent’ Act of Parliament, known as an enabling act
This creates the framework of the law and then delegates the power to others to make more detailed law in the area
An example of an enabling act is the Police and Criminal Evidence Act 1984 which gives us powers to made codes of practice for the use of police powers
What are the three types of delegated legislation
Orders in council
Statutory instruments
By-laws
Describe orders in council as a type of delegated legislation
The King and the Privy council
- Effectively allows the government to make legislation without it having to be debated or voted in Parliament
- They are made in time of emergency, when laws need to be passed or changed quickly, but parliament is not sitting
- Can be used to change specific laws i.e classification of drugs (2003 - misuse of drugs act 1971 to downgrade cannabis to a Class C drug. Five years later it had been a mistake and another Order in council was issued, upgrading to Class B
Constitutional reform act 2005, parliament gave the privy council the power to change the number of supreme court judges, done by the privy council using an order in council
Describe statutory instruments as a type of delegated legislation
Laws made by the government department and their ministers
- often in the form of regulations
- ministers in government departments can be given authority to make regulations and each is responsible for different areas of policy
- Often used to fill in primary legislation and to update rules/regulations
- Often used to fill in primary legislation and to update rules/regulations
-Made on areas of law which affect the whole country e.g Bail Act
Over 3000 SI’s are made each year
- parliament could not cope with this volume or complexity, which is best left to the departments with expertise and responsibility in specific areas
Describe by-laws as a type of delegated legislation
Made by local authorities to cover matters within their own area
- National trust act 1907
- Sometimes public corporations can make by laws e.g railway companies can make rules about behaviour on premises
- Allows professional associations to make rules about their members, solicitors act 1974
- Large corporations could make laws about not smoking/parking restrictions/use of mobiles/drinking in public e.t.c
- Usually these by-laws will be made under the Local Government Act 1982
What are the 4 types of parliamentary control
Approval of the parent Act
Negative resolution procedure
Affirmative resolution procedure
Scrutiny by committee
Explain approval of the parent act
Parliament’s first attempt to control delegated legislation made in is name comes with the drafting of the parent act .
This should be clear, unambiguous and give ‘what’ and ‘how’ instructions that are open to very little interpretation
Explain negative resolution procedure
Delegated legislation is designed to save parliamentary time but AROs can defeat this object and could not possibly be used for all 3000 SIs each year
In the absence of an ARO, Parliament has 40 days to pass a negative resolution order to prevent an SI coming into force
If Parliament misses this deadline, only primary legislation or repealing the parent act can remove the DL
Explain Affirmative resolution procedure
In this process, Parliament cannot amend (change) the statutory instrument, it can only be approved or denied
Explain Scrutiny by committee
Parliamentary committees are bodies set up for peers and MPs to scrutinise the work of the government, including delegated legislation
The main committee for this is the Joint committee on statutory instruments
Joint committee on statutory instruments can review all statutory instruments and decide if the rest of Parliament need to be alerted to any problems such as….
1. If SI creates a new tax - only parliament can do this
2. If SI has retrospective effect
3. If SI goes beyond the powers given under the parent act
4. If SI is in some way defective
What is judicial review
Where courts review the decisions made by public authorities
It is done by the KBD, usually by 2 judges. Decisions can be appealed to the Court of Appeal and the Supreme Court
What are the three types of delegated legislation where it is found to be ultra vires
Ultra vires = outside the power given by the parent act (quashed)
Procedural ultra vires
Substantive ultra vires
Wednesbury unreasonableness
Explain procedural ultra vires
- give a case
The secondary body has exceeded its powers and failed to follow the procedural instructions in the parent act
e.g Aylesbury Mushrooms 1972
Explain substantive ultra vires
- give a case
The secondary body had gone beyond the powers granted to it and made more regulations than permitted
This is different from procedural ultra vires because it is about the result of the delegated legislation, not the process of making it
e.g Fire Brigades Union 1995
Explain wednesday unreasonableness
- give a case
Where a piece of delegated legislation is so unreasonable that no reasonable body or authority would ever consider imposing it
If the court finds a piece of delegated legislation to satisfy the test for Wednesbury unreasonableness, it will declare it to be ultra vires
e.g Swindon NHS Trust (1996)
What are the 4 advantages of delegated legislation
Time saving
Policy over detail
Expertise
Flexibility
Explain why an advantage of DL is that it is time saving
DL is quicker to pass and amend that an act of parliament, which must be debated and passed by both houses
Parliament’s business is controlled by the government; its procedure can be complicated and it does not sit all year
New laws to deal with changing situations like the COVID 19 pandemic, have been introduced
Explain why an advantage of DL is policy over detail
It is better for parliament to focus on wider issues of policy rather than the detail and leave others to fill in the gaps
For example the Road Traffic Act 1988 made a general requirement for motorcycle helmets to be worn but detailed specifications of the nature of approved helmets were set out in separate regulations
Explain why an advantage of DL is expertise
DL may ensure that laws are made by those with relevant expertise
This is important because for example, health and safety laws for different industries need to be relevant and accurate. DL allows people who understand that particular industry to draft them
Laws that affect local areas made by local authorities who understand the needs of that area means that laws are more likely to be accurate and fit for the purpose
Explain why an advantage of DL is flexibility
DL can be easily amended or revoked without having to go back to parliament
e.g updating the amount of minimum wage each year
What are the disadvantages of delegated legislation
Undemocratic
Wording
Volume
Control
Explain why a disadvantage of DL is it being undemocratic
It takes law making away from democratically people elected to the House of Commons and allows non elected people to make law
This is a problem because these officials are not accountable to the electorate; they cannot be voted out if they make a mistake
Particularly problematic if an enabling act delegates powers to amend or repeal acts of parliament
Explain why a disadvantage of DL is the wording
DL shares with Acts of parliament the same problem of obscure wording that can lead to difficulty in understanding the law and requiring judges to interpret the meaning
Explain why a disadvantage of DL is the volume
The sheer volume of DL is hard to keep up with, typically 3,000 statutory instruments are passed each year
This is problematic as ordinary people may not be able to work out what the law is/ how to control it
This can be argued to be contrary to the rule of law which states that law should be ascertainable
Explain why a disadvantage of DL is control
Parliament and courts can be ineffective at controlling DL
Judges cannot exercise their control over DL without a member of the public taking legal action, which is time consuming and expensive
