Delegated Legislation Flashcards
(39 cards)
What is delegated legislation?
Law made by individuals and institutions acting under authority from Parliament
Parliament passes a parent/enabling Act e.g. Act of Parliament which…
Passes power to make law to other bodies or organisations.
Delegated powers are usually granted in an enabling Act which will establish a framework of general principles and grants powers to fill in the details to others.
Passing an enabling act enables…
Queen and Privy Council to issue orders in Council
Ministers to issue statutory instruments and regulatory reform orders
Local councils or public corporations to issue bylaws
Why do Parliament delegate power?
Saves time for Parliament
What are the 3 types of delegated legislation?
Orders In Council
Statutory Instruments
By-Laws
What are Orders In Council?
The Privy Council
Who are the Privy Council?
A formal body of advisors to the Queen
Current/ex members of Parliament
Who are the Judicial Committee of the Privy Council?
UKs most senior judges
The final court of appeal for many commonwealth countries and crown dependencies
When have Orders In Council been used?
When a statutory instrument may not be appropriate
Transferring powers between government dependencies
Extending legislation to crown dependencies
Transfer of power to devolved assemblies
What are Statutory Instruments?
Come in form of rules, orders, regulations and codes
Apply to the whole country
How are Statutory Instruments brought in?
Drafted by government ministers and departments under powers given under enabling acts
Necessary expertise relevant to the area concerned is used when drafting a statutory instrument
Introduced by either an affirmative or negative solution
Why are Statutory Instruments brought in?
Allow provisions of an Act of Parliament to be brought into force at a later date
Provide detail that would be too complex to include in the broad framework of an enabling act
Amend, update and enforce provisions in existing primary legislation
What’s an example of a Statutory Instrument being used?
Using mobile phones when driving is banned.
Who makes By-Laws?
Can be made by local authorities to cover matters in their own specific area e.g. no open fires allowed in certain parks
Also can be made by public corporations and certain companies which relate to them and their customers e.g. London Underground banned smoking
How are By-Laws made?
As they are not subject to the affirmative and negative resolution procedures, they may be subject to judicial review and quashed as ‘ultra vires’ if they go beyond the limits of the enabling act
Usually based on Home office guidelines and limited to a specific geographical area
How do you know which Bylaws affect you?
Notice and publication in local press is required
Copies must be available for inspection at local authority offices
What are the 2 types of controls?
Parliamentary controls
Control by the courts
What are the 5 parliamentary controls?
Parent/enabling act Consultation Laying before parliament Questioning Government ministers Scrutiny committees
Parliamentary Controls:
Parent/enabling act
Parliament have the initial control over what powers are delegated as the enabling act sets the boundaries within which the delegated legislation is to be made
- All enabling acts state which Government Minister can make the regulations/rule/order and what they can actually do
- States the type of laws to be made and whether they can be made for the whole country or just certain areas
- Tells the law maker if they have to go through consultation and which resolution process the statutory instruments must go through
This is a control as it explains the powers of legislation
However, an enabling act cannot change any delegated legislation and can only affirm/annul it
Consultation
Where the delegated body is required to consult ‘interested’ parties to find out their views on the proposed laws
Often required by the enabling act
Parliamentary Controls:
Laying before parliament
Most statutory instruments must be affirmed after being presented to Parliament
Positive resolution (SI will not become law unless specifically approved by Parliament. Needed to change the Codes of Practice)
Negative resolution (SI comes into force unless rejected by Parliament usually within 40 days of being laid before Parliament. More common)
Super affirmative resolution procedure (if a minister makes delegated legislation under the Legislative and Regulatory Reform Act 2006 he is given wide powers to amend Acts of Parliament therefore the controls will be stricter)
Parliamentary Controls:
Questioning Government ministers
Ministers can be questioned about their, or their departments, proposed or current delegated legislation by MPs in the House of Commons
Provides an extra check on the work that they are doing
Parliamentary Controls:
Scrutiny Committees
A small group of MPs act as a filter so that Parliament only needs to consider a small number of SIs.
They review SIs and refer to Parliament that they think need further consideration.
It is a technical check only and has no power to amend
There are additional scrutiny bodies to help
What might be a cause for concern with Statutory Instruments?
Imposing a tax or charge
Appears to have retrospective effect not provided for in the Act or gone beyond the powers of the Act
Makes some unusual or unexpected use of those powers
Defective in some way
