Delegated Legislation Flashcards
(20 cards)
Delegated Legislation
Delegated Legislation is law made by some person or body other than parliament but with the authority of an act of parliament
Types of delegated Legislation
Orders in council
statutory instruments
By-laws
Orders in council
orders in council are a type of delegated legislation that is made by the monarch and privy council.it allows the government to make laws without parliament
There are 3 common uses of orders in council
emergencies
transferring powers between government departments
Making Eu directives into law
Examples of orders in council
The Misuse of Drugs Act 1971 (Ammendment) order 2006
and enabling parents act
Statutory instruments
· Made by government ministers and their departments eg Minister of Health, Minister of Education etc
· They apply nationally
· They can be called ‘regulations/orders/rules/codes
· Often used to amend, update or add detail to existing legislation eg annual rises in national minimum wage are done by SI, changes to the police codes of practice are also done by SI, the Coronovirus regulations 2020 are a good example (issued by the Dept of Health)
· 1000 – 2000 SIs usually made each year.
· They must all be approved by Parliament (under negative or affirmative resolution procedures)
Examples of statutory instruments
Codes of practice under PACE 1984
Remedial orders under the human right Act 1998
Corona Virus-related statutory instruments between january 2020 and march 2000 were made
Bylaws
By-laws
· Issued by local authorities (councils) with power delegated to them under Local Government Act 1982
· Also issued by public corporations eg British Airports Authority, train and bus companies
· Apply only locally or to particular premises
· Eg used for banning alcohol in certain public areas, banning dogs on the beach or bicycles in parks
· Local authority by-laws include no smoking at stations, no eating/drinking on some busses, max 100ml liquids in carry on baggage at airports.
Examples of By-laws
market places- Food Act 1984
local parking regulations
Public health Act 1875
Controls over delegated legislation
Enabling Act
Resolution Procedures-negative resolution, affirmative resolution
Scrutiny committee
Judicial Review
Enabling Act
The Enabling Act which allows each delegated body to make that type of delegated legislation
effective-it sets the limits of the powers to make delegated legislation
regulations may not be followed
Negative resolution (resolution procedure
For most statutory instruments , any statutory instruments which requires this requires this procedure will become law unless an MP raises an objection to the statutory instruments and asks for a vote in a parliament.it becomes law unless parliament reject within 40 days
Effective -it allows for the law to reviewed before the law is in action in 40 days
ineffective -it becomes a law after 40 days
Affirmative Resolution
For some statutory instruments
if a statutory instruments is requires this procedure it means that it must be specifically approved by parliament both houses must vote in favour, it will include in the enabling act
effective -must approved by both houses of parliaments before coming into force
ineffective -maybe some disagreements between
Scrutiny Committee
Parliament has a number of committees that scrutinise delegated legislation
the joint committee on statutory instruments is the main committee that scrutinise statutory instruments to ensure that they don;t do certain things
the committee can refer the statutory instrument back to the house of parliament if it:
it improves a tax or change
it appera to have a respective effect which was provided for the enabling act
Judicial Review
A judicial Review case is a case in which the judges consider whether the government have acted within the law. Judicial Review is based on ultra Vires (beyond the powers)
If a piece of delegated legislation is ultra vires the law can be declare that the law is void
Procedural ultra vires-where a delegated body has failed to follow a procedure required that the law is void
Substantive ultra vires-is where a delegated body has used powers given to them for aparticular reason for another unauthorised reasonablesness
Procedural Ultra Vires- Agricultural Training Board v Aylesbury Mushrooms
Statutory instruments
It had the right to create the law . it was invalid as it had against the interest of the mushroom owners . The correct procedure was not followed
it is procedural ultra vires
Substantive Ultra Vires Case ( R v Home Secretary Ex partie fire brigades union 1995)
Statutory instrument had been created
the changes made by the home secreatry to the ciminsl injuries compensation scheme were decided to have gone beyond the delegated powers given in the criminal justice act 1988
Unreasonableness Ultra Vires (Roger v Swindon NHS Trust)
By laws
The decision was deemed unreasonable this is ultra vires due to reasonableness
NHs refuse to provide the drugs needed for her conditions
Advantages of delegated legislation (new opporunities)
Another advantage of delegated is the opporunity for future consultation . this is throgh parliamentary control and court control. An example of a parliamntary control is affirmative resolution .this is where it must be aproved by both houses however it can be effective
Advantage of delegated legislation (flexibility)
another advantage of delegated legislation is it gives flexibility some laws need to be reform by the using delegated legislation will allow the law to be reform however the law will allow not be perfected and may be ultra vires
one advantage of delegated legislation
one advantage of delegated legislation is it saves parliament time for example 3,500 statutory instruments each year however some statutory instruments are required affirmative resolution procedures this is where the statutory instruments are debated and voted by both houses therefore allowing parliament to save time
