Unit 1: Delegated Legislation Flashcards
(37 cards)
What is delegated legislation?
Delegated legislation is law made by a person or body to whom Parliament has given law-making power by passing a Parent or Enabling Act
Why do we need delegated legislation?
- A new law may be required for a specific area of the country, in which case specialist local knowledge may be required.
- A new law on a technical matter such as health or agriculture will require specialist technical knowledge.
- An emergency or a new situation may require new law to be made very quickly and Parliament may not have the necessary expertise to make this new law quickly.
- The process of law-making, requiring readings of the new laws in both Houses of Parliament may be too slow in an emergency.
What does delegated legislation require?
-Parent Act / Enabling Act
What is the purpose of Parent Act / Enabling Act?
- This is a piece of primary legislation which allows Parliament to give others authority to make law.
- This Act outlines the framework of the new law and specifies the person or body to whom authority will be given.
- The person or body can be anybody, but is usually a government minister, a local authority or a public corporation.
What does the Parent Act / Enabling Act have to contain?
- The area within which law can be made
- Any procedures that the delegated person or body must follow when making the delegated laws
(Law making power is given to the person or body best equipped with the knowledge and resources to make the type of law required.)
Example of delegated legislation
The UK smoking ban which began on 1st July 2007 is an example of delegated legislation.
The power to make law was given to government ministers supported by a specialist civil service department.
The ban is now in use throughout the UK in all enclosed public places.
Types of delegated legislation
- Orders in council
- Statutory Instruments (SI)
- By-Laws
Orders in council: What are they used for?
- Transferring responsibilities between Government Departments
- Dissolving parliament before an election.
- In times of national emergency, when Parliament is not sitting. An example of an emergency situation is which an order in council was made, is as a result of the terrorist attacks on 11th September 2001 where there Afghanistan Order 2001 was passed.
Orders in council: How frequently are they used?
When an ordinary statutory instrument would be inappropriate.
Orders in council: Who by is it used/made?
Frequently made in the name of the queen by and with the advice and consent of the Privy Council
Orders in council: Example
Afghanistan (united Nations Sanctions) Order 2001, which makes it an offence to make funds available to Osama Bin Laden or the Taliban or any person or body connected with Osama Bin Laden or the Taliban.
SI: What are they?
Statutory Instruments are law made by Government Ministers within the area of their responsibility.
SI: How frequently are they used?
Over 3,000 a year.
SI: Who by is it used/made?
Statutory Instruments are law made by Government Ministers within the area of their responsibility.
SI: Examples of use
- Statutory Instruments are often used to update law. E.g. the regular increase in the amount of the national minimum wage under the National Minimum Wage Act 1998.
- Sometimes wider powers are given to the Government Minister to fill in the necessary details which are too complex to be incorporated into the Act.
- Law that is made to comply with EU directives is often made in Statutory Instruments. E.g. the Unfair Terms in Consumer Contracts Regulations 1999 were made in order to comply with the Unfair Terms in Consumer Contract Directive 1993.
By-Laws: What are they?
Local authorities can make laws which apply just within their geographical area. A Country Council can pass laws affecting a whole country, while a City, Town or District Council may pass laws affecting that city, town or district.
By-Laws: Who are they made by?
By-laws are made by local authorities and public corporations or companies. They must be approved by the relevant Government Ministers before they are enforceable in the Courts.
By-Laws: Examples
- A parent Act in respect of dog fouling is the Dogs (Fouling of Land) Act 1996. Under this Act a local authority can designate areas of land as poop scoop areas. This means dogs that foul in designated areas and do no clean it up; their owners will be a subject to a fixed penalty of £50.
- Pubic bodies and some companies can make laws regulating the behavior of the public while on their property, i.e. the Transport Act 1993 where it was made illegal to smoke on trains. (Boddington v British Transport Police (1998).
Two ways in which delegated legislation can be controlled?
- Parliamentary Controls
2. Judicial Controls
Parliamentary Controls: Ways in which it controls the impact of Delegated Legislation
- Asking Questions
- Scrutiny Committees
- Enabling Act
Parliamentary Controls - Asking Questions: Explain
Consults experts in the relevant field e.g. road traffic law may be referred to the act.
Parliamentary Controls - Scrutiny Committees: Explain
- Joint select committee on statutory instruments. Looks at the SI (Procedures and ensuring power has not been exceeded.
- House of Lords on delegated powers, they look at Enabling Acts (Who’s getting power, whether it’s fit for the purpose and whether there’s enough).
Parliamentary Controls - Enabling Act: Explain
A statute empowering a person or body to take certain action, especially to make regulations, rules or orders.
Parliamentary Controls - What is Affirmative Resolution Procedure
Where Statutory Instruments must be approved by one or both Houses of Parliament within a specified time, usually between 28 and 40 days, before it can become law.
