Delegated Legislation Flashcards
(37 cards)
8c - Delegated Legislation
• Occurs when Parliament passes a parent/enabling act which authorised another person or body to make a particular law
• Laws made this way are known as secondary law but have the same effect as those made directly by parliament
8c - Delegated Legislation - Examples
• Police and Criminal Evidence act 1984 (the parent act)
• Authorised the home secretary to make a statutory instrument regarding the tape recording of interviews of suspects at police stations
- Contained in the codes of practice which were created via statutory instruments
Delegated Legislation- Bylaws
• Made by local authorities or large corporations
• Made to deal with matters that affect the local area
• E.g. Fines for dog fouling
Delegated Legislation - Statutory Instruments
• Made by government ministers
- Relate to the minister’s area of responsibility
• Made to add detail to a piece of primary legislation that usually affects the whole country
• E.g. Road traffic act 1988
Delegated Legislation - Orders in Council
• Made by the monarch and privy council
- Consists of PM and other leading members of government
• Made to provide a quick response, usually when Parliament isn’t sitting in an emergency situation
• E.g. Emergency powers act 1920
8d - Control by Parliament
• Parliament can amend or repeal delegated legislation at any time
• The parent act itself is a form of control over delegated legislation as it will usually lay down strict requirements, limitations and procedures to be followed when making legislation
8d - Control by Parliament - Resolution Procedures
• These are applicable to statutory instruments only
8d - Control by Parliament - Affirmative Resolution
• Procedure requires some statutory instruments to be voted on by Parliament
• Essentially this procedure requires the statutory instrument to have the approval of both houses of Parliament
8d - Control by Parliament - Negative Resolution
• Procedure means that most statutory instruments become law unless a debate is requested by a member of Parliament
• Parliamentary members have 40 days to object to the statutory instrument and request a debate
8d - Control by Parliament - Super Affirmative Resolution
• Involves an additional stage of scrutiny where Parliament considers a proposal for a statutory instrument before the statutory instrument is formally presented (laid)
• This procedure is used for statutory instruments that are considered to need a particularly high level of scrutiny
• There are some specialised categories of statutory instrument that are used for particular purposes that are, or can be, considered under super affirmative resolution procedure
• These statutory instruments usually amend or repeal acts of Parliament
• E.g. legislative reform orders, localism orders, public bodies orders, regulatory reform orders, and remedial orders
8d - Control by Parliament - Scrutiny Committees
• Government ministers are accountable and can be questioned by Parliament
8d - Control by Parliament - Joint Select Scrutiny Committee
• Reviews all statutory instruments and brings to the attention of Parliament any points that need to be considered
• E.g. If a minister has gone beyond the powers set out in the enabling act
8d - Control by Parliament - House of Lords Delegated Powers Scrutiny Procedure
• Considers whether the provisions of a bill (before the parent act is passed) are about to give inappropriate law-making powers to other bodies
8e - Controls by Courts
• Delegated legislation can be challenged via judicial review in the courts under the doctrine of ultra vires
- This means that the delegated body has gone ‘beyond the power’ handed down to them in the enabling act
• Any delegated legislation which is declared ultra vires is void and ineffective
• In order to bring about any case for judicial review, a person must show ‘locus standi’
- They are directly affected by the legislation
• If they are seen to be no issue with the type of delegated legislation, it is declared to be infra vires
8e - Control by Courts - Process
• Defined as challenging a decision of a public body in court
• It can only be used if there’s no other effective way of challenging that decision, such as an appeal
• The judge is reviewing the lawfulness of the decision made by the public body or function only
• It is concerned with whether the law has been correctly applied and ensuring that the right procedures have been followed
• A judicial review case must be brought within three months of decision being challenged
• Private bodies cannot be challenged via the judicial review process unless they take on a public function such as running a prison
• Judicial review cases are heard in the administrative court
- Usually King’s Bench Division or High Court
8e - Control by Courts - Procedural Ultra Vires
• A public authority has not followed the specified procedures set out in the enabling act for creating delegated legislation
Aylesbury Mushroom Case 1972
• Minister of labour had to consult ‘any organisation appearing to him to be representative of substantial numbers of employers engaging in the activity concerned’
• Minister failed to consult the Mushroom Growers Association which represented 85% of all mushroom growers
- Meant the order establishing a training board was invalid as it was against mushroom growers but it was valid in relation to others affected, such as farmers, had consulted with NFU
8e - Controls by Courts - Substantive Ultra Vires
• Goes beyond the powers granted by the enabling act
R v Home Secretary exp Fire Brigades Union 1995
• Home secretary made changes to criminal injuries compensation scheme
• Charges held to have gone beyond power given by Criminal justice act 1988
8e - Controls by Courts - Unreasonable
• The rules are unjust. made in bad faith or are so perverse that no reasonable person should have made them
Strickland v Hayes Borough Council 1896
• Bylaw was passed prohibiting singing/reciting any obscene song/ballad and use of obscene language generally
• Ultra vires because it was too widely drawn that it covered acts in private as well as public
8f - Need for delegated legislation
• To free up Parliamentary time
- Not enough time for Parliament to deal with creating legislation in detail
• To deal with legislation when Parliament is not sitting
- During the summer recess for example or in times of emergency
• To speed up the process of legislation
- Delegated legislation does not have to be timetabled and does not have to go through the full parliamentary process
• Experts with the appropriate technical knowledge can be used to refine the details of the legislation
• Local knowledge is used when making bylaws which is likely to be more appropriate than relying on instructions from ministers based in London
• I’m an emergency or when Parliament is not sitting legislation can be passed quickly
- This can be achieved by the use or orders in council
- E.g. An order in council was made during the fuel crisis in 2000 and enabled the movement of fuel throughout the country
- They were also used during covid 19
• Orders in council can be used to implement a European Union directive quickly when Parliament is not sitting
- The power to do this was given via the European Communities Act
• Delegated legislation gives the government powers to make changes to law without needing to push through a completely new act of Parliament
- Legislation can be kept up to date
12c - Delegated Legislation - Advantages - Time Saving
• Quicker to pass and amend than an Act of Parliament
• Parliament’s business is controlled by the government
- Its procedure can be complicated and it does not sit all year
12c - Delegated Legislation - Advantages - Policy Over Detail
• Better for Parliament to focus on wider issues of policy rather than detail
• For example, the Road Traffic Act 1988 made a general requirement for motorcycle helmets but detailed specifications were set out by separate regulations
12c - Delegated Legislation - Advantages - Expertise
• It is better to initially involve and use technical expertise or local knowledge when making detailed laws for specific industries or local areas
• The law making system would lose public support if laws were introduced and then found to be unworkable due to failure to consult or lack of knowledge
12c - Delegated Legislation - Advantages - Flexibility
• Delegated legislation can be easily amended or revoked without having to go back to Parliament
• An example is the annual updating of the amount of minimum wage each year
12d - Delegated Legislation - Disadvantages - Democracy
• It takes law making away from the democratically elected
• Allows non elected people to make law
• Parliament’s control is farely limited
