Flashcards in Deligated Legislation Deck (36):
What is delegated legislation?
Where the authority to create laws (legislation) is given to curtain members of parliament or curtain authorities.
Why do we have delegated legislation?
- The need to be flexible
- Time saving exercise
- The need for specialist rules on technical matters (statutory instruments)
- The need to act with speed if Parliament is not in session when an emergency arises (orders in council)
- The need to deal with local issues (using by-laws)
- To deal with specific needs of the public authorities eg. Transport providers
- To update rules eg. Amount of fines (statutory instruments)
What is needed for delegated legislation to take place?
The Parent Act, also known as the Enabling Act
What is the Parent Act/Enabling Act?
A piece of legislation that gives Parliament the ability to authorise another body to make new laws
The function of the Parent Act/Enabling Act
- It contains the outline framework of the law
- The act then gives authority to the named person to make a more detailed law
- So Parliament outline what they want in the Act then pass on the responsibility to create it to a specialist body
- The laws responsibility is often to delegate to Local Authorities of Government ministers because they contain specialist knowledge of the areas of law
What are the three types of delegated legislation?
- Orders in Council
- Statutory Instruments
- By - Laws
What are orders in council?
Orders in council are legislation that are made by the Queen and Privy Council that are enforceable in Courts.
Situations in which orders in council are used
- Transferring responsibility between government departments
- Transferring responsibility from Westminster to Scottish Parliaments
- Dissolving Parliament before an election
- dealing with foreign affairs
- Bringing an Act of Parliament into force
- In times of emergency, when Parliament is not sitting
Examples of Orders in council
- Terrorism Order 2001 made it an offence to provide funds to anyone involved in terrorism and allowed for the freezing of such funds.
- Extradition Order 2002 allowed for persons suspected of terrorist activities to be extradited for questioning and trial.
What are statutory instruments
Statutory instruments are laws made by Government Ministers within the area of their responsibility and are enforceable in the courts. Statutory instruments are often referred to as 'regulations' or 'orders' and can be used to amend, update or enforce existing primary legislation.
Situations in which statutory instruments are used
- Might be used to change the amount of a fine or criminal offence.
- For a technical matter that requires expertise knowledge eg. The Minister of Health
Examples of statutory instruments
- Changes to the National Minimum Wage Act 1998
- The Railways Act 2005: created by the secretary of State for Transport
What are By-Laws
By-laws are laws made by local authorities and public bodies. They are enforceable in the courts and apply to a local authority area or to the public body only.
They are made by:
- Public corporations or companies
- County Council (affect the county)
- City Council (affect the city)
- Town Council (affect the town)
- District Council (affect the district)
- Local authorities
Situations in which By-Laws are used
- Prevention of curtain disruptive activities in curtain areas eg. Drinking alcohol in designated areas eg. Festivals
- Regulation of the behaviour of the public on their property eg. Behaviour of students on university grounds.
- Something that affects one particular area eg. Litter, or dog faeces.
Examples of By-Laws
- Boddington v British Transport Police 1998: where Mr Boddington breached a section of the Transport Act 1962 by smoking in one of the carriages.
- Hastings Borough Council The Clean Neighbourhoods and Environment Act 2005.
How can the validity of delegated legislation be challenged?
In the high court through the Judicial Review Procedure.
What do they decide in the high court?
If the action is lawful or not
What can the court declare?
What does ultra vires mean?
'Beyond the powers'
When are ultra vires deemed?
When legislation is made outside the powers granted by the parenting act
What are the two types of ultra vires?
- Procedural ultra vires
- Substantive ultra vires
What does procedural ultra vires mean?
The way the legislation was made was not how the Parenting Act permitted.
What does substantive ultra vires mean?
What the legislation contains was not what the Parent Act permitted.
Procedural ultra vires summary
Procedural ultra vires is concerned with how the legislation is made. If the legislation is made without following the method specified by the parent act then it can declare ultra vires and void.
Procedural ultra vires case
Aylesbury Mushroom Case (1972): the new law on growing mushrooms was void because it did not comply with the requirements the parent act set out.
Substantive ultra vires summary
Substantive ultra vires is concerned with the content of the delegated legislation. If the legislation is made outside the limits declare by the parent act then it is considered ultra vires and void.
Substantive ultra vires case
Customs and Excise Commissioners v Cure and Deeley Ltd (1962): The Parent act gave the commissioner power to make laws on the collection of taxes. The legislation was considered void because the commissioner tried to include how much tax should be paid, the Parent Act did not allow him to do this.
What is not of concern of the court?
The reason behind the delegated legislation or the merits upon which it was made
What is the only concern of the court?
- Only if the delegated legislation is lawful or not.
- if it is unreasonable (Wednesbury Unreasonableness)
Where can the court declare delegated legislation void?
- It levies taxes (only parliament can do this)
- It allows sub-delegation (where power is passed on to another after the initial delegation)
- Delegated legislation conflicts with EU law and all relevant parties specified by the Parent Act and have not been consulted.
Why is the courts power is limited?
Although their powers are fairly broad, the case has to be brought to them.
What happens if the case isn't brought to the court?
Then they have no knowledge of it.
Advantages of delegated legislation
- Parliament Control
- Democratic Process
- Expertise Knowledge
- Judicial Control
Disadvantages of delegated legislation
- Partly undemocratic
- Lack of Publicity/Transparency
- No Effective Control
- Risk of Sub Delegation
- Contradicts Separation of Powers
1. Validity can be challenged in the high court
2. High Court has power to declare DL ultra vires
3. Procedural ultra vires, Alesbury Mushroom Case
4. Substantive ultra vires, Customs Excise Commissioners v Cure and Deeley
5. Wednesbury Unreasonableness, R v swindon NHS trust