Delegated legislation Flashcards
(27 cards)
define delegated legislation
when Parliament pass down some of their law making
power to other bodies. This is done through an Enabling Act such as the Police and
Criminal Evidence Act (PACE) 1984.
Orders in Council
Made by: Monarch and their privy council
Use: amend old laws,
transfer power between Government departments, and respond to emergencies
when Parliament are not sitting (under the Civil Contingencies Act 2004).
Example: The Misuse of Drugs Act 1971 (Amendment) Order 2008
By-Laws
Made by: Local authorities or large public bodies and they only apply to the area under their control
Example: London Underground smoking ban
Statutory instruments
Made by: Government ministers about their area of expertise
Example: Police Code of Practice – under PACE, the Minister of Justice is allowed to create
rules about stop and search, arrest etc.
Roughly 3000 of these are made a year and they apply nationally.
How does the Enabling Act control DL?
-decide which ministers to give power to
-specify who they need to consult
-specify where the law applies
-The power to repeal, instantly removing the power to make DL
Explain what happens under the Negative Resolution procedure?
-statutory instrument proposed
-will become law unless rejected within 40 days, there is no debate about the SI
What must happen for an Affirmative Resolutions procedure?
-statutory instrument proposed
-debate follows in both houses
-must be expressly approved by the parliament
How does the Joint Select Committee control SIs
refer SIs to Parliament if they apply retrospectively, go beyond the Enabling Act, or use their powers in an unusual way.
However, the Committee cannot alter the SI themselves, just refer it to Parliament.
How do the courts control DL
Through judicial review. This is when someone with ‘standing’ wants the King’s Bench Divisional Court (formerly QBD) to say that DL is ‘ultra vires’ and therefore void.
In what 3 situations might DL be considered ‘ultra vires’
- Delegated legislation goes beyond the powers granted by the Parent Act (R v Home
Secretary ex parte Fire Brigades Union.) - Delegated Legislation did not follow the correct procedure (Agricultural Training Board v Aylesbury Mushrooms)
- A decision made under DL was unreasonable ( R v Swindon NHS Trust)
Enabling act is effective because
it is where parliament sets out the exact conditions in which all 3 types of delegated legislation can be made
negative resolutions are effective because
it is a very simple process that doesn’t waste anybody’s time due to the law automatically passing if nothing happens for 40 days
negative resolutions are not effective because
if no action is taken by parliament within 40 days of the proposed SI being presented, bad law could slip through the gap without parliament noticing it
affirmative resolutions are effective because
it has to be specifically approved by parliament and so bad laws should be picked up on
affirmative resolutions are not effective because
it takes up parliaments time which defeats the whole point of delegating and parliament cannot amend the DL, only approve/deny it
the scrutiny committee is effective because
with so much DL, they can try to catch bad bits of the law that parliament would miss
the scrutiny committee is not effective because
they can only refer the law to parliament, not do anything to it themselves; and may not have specialist knowledge so may not know if the law is problematic.
judicial reviews are effective because
there are numerous ways to prove that DL is ultra vires and the court can hear from expert witnesses to testify about any specialist matters to work out if the law should be void
judicial reviews are not effective because
-only someone with ‘standing’ is able to being the case, not everyone can sue.
-Plus, this person may be going against a public body who will have more resources, so the odds of winning are lower
-The court cannot change the law, only make it void
-Only 0.22% of judicial review cases were successful
Disadvantage of DL (undemocratic)
I: Delegated legislation is undemocratic
C: The privy council includes unelected judges and bishops
E: A statutory instrument was passed in 2012 by the Minister of Justice restricting the rights of immigrants to get legal aid.
C: important laws may not represent what the public want
B: Parliament must trust others in order to focus on more important matters like BREXIT
Disadvantage of DL (complex)
I: DL can be complex
C: legislation can be long and complicating, needing judges to interpret them in order for them to be understood
E: R v Swindon NHS Trust
C: It is hard for the public to understand and apply the law
B: Law is made with expertise
Disadvantage of DL (volume)
I: The sheer volume of DL is a disadvantage
C:Over 3000 Sis and several thousand By-Laws are made a year with no publicity
E: British airports police passed a by-law prohibiting taking tennis racquets on planes, customer was fined despite not knowing the law
C: individuals and companies may be unaware of what is legal
B: By-Laws are tailored to be effective in a specific area
Disadvantage of DL (not effective)
I: Controls on DL are not always effective
C: the scrutiny committee can only refer problems to Parliament and hope they decide to take action, and very few judicial reviews are actually successful.
E: In 2018, nearly 3,600 reviews were
requested, but only 184 cases went ahead and the Government lost 40% of these.
C: lots of bad law is being made and not resolved
B: having a committee to double check work is beneficial to parliament
Advantage of DL (saves time)
I: Delegated Legislation saves parliament time
C: Parliament has 650 MPs in H of C and therefore any Acts passed involve a lot of debate and consequently a lot of time
E: Health and Safety at Work Act 1974, Mining Regulations 2014.
C: Parliament can concentrate on important matters such as BREXIT
B: DL is undemocratic
