Delegated Legislation 8m Flashcards
What is Delegated Legislation?
Delegated legislation is when Parliament pass down some of their law making power to other bodies. This is done through an Enabling Act like the Police and Criminal Evidence Act (1984).
Name the types of DL
Orders in Council (Misuse of Drugs Act Amendment Order 2008)
By-laws (Underground smoking ban)
Statutory instruments (Police Code of Practice
Explain orders in council
Made by the Queen and Privy Council. Used to amend old laws, transfer power between Government departments and respond to emergencies when Parliament are not sitting. For example, the Misuse of Drugs Act Amendment Order (2008) reclassified cannabis from Class C to Class B.
Explain by-laws
Made by local councils or public bodies such as the London Underground. They only apply to the area under their control. For example, the Underground created a smoking ban via by-law, but it only applies in the Underground.
Explain statutory instruments
Made by Gov departments and ministers about their area of expertise. For example, the Police Code of Practice, the Minister of Justice is allowed to create rules about stop and search etc. Roughly 3000 are made a year and they apply nationally.
List controls on DL
Enabling Act
Negative/Affirmative resolutions
Joint Select Committee
Judicial Review - goes beyond powers (R v Home Sec), not made following proper method (ATB v Aylesbury Mushrooms), unreasonable then ‘ultra vires’ (R v Swindon NHS)
Explain the Enabling Act as a control
Parliament decide who can make law, how they make it and what they make it about. They can also repeal the act to take away the power.
Explain negative/affirmative instruments as a control
Stat instruments can be controlled through either negative or affirmative resolutions, depending on which was specified in the Enabling Act. Neg resolutions are more common and mean the instrument becomes law if Parl don’t reject within 40 days. Affirmative usually only applies to important bits of DL and require Parl to actually approve the instrument before it becomes law.
Explain the Joint Select Committee as a control
They also refer instruments to Parliament if they apply retrospectively, go beyond the Enabling Act or use their powers unusually. However they can’t alter the instruments themselves, just refer them to Parl.
Explain judicial review as a control
This is when someone with ‘standing’ wants the Queens Bench Divisional Court to say the DL is ‘ultra vires’ and thus void. This can happen if DL goes beyond the powers in the Enabling Act, like changing the compensation in R v Home Sex. If DL was not made folllwing proper method like not consulting the mushroom growers association in ATB v Aylesbury Mushrooms. If DL is unreasonable then ‘ultra vires’ can apply like in R v Swindon NHS where they gave different treatment to people with the same illness.
