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42 Cards in this Set
- Front
- Back
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What is delegated legislation? |
Also called secondary legislation - a law made by someone other than parliament but with authority like parliament. |
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What is the enabling act? |
Authority laid down in a ‘Parent Act’ or an ‘enabling act’ - creates frame work of law to make more detailed law in an area. |
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Why do we need delegates legislation? |
1) Parliament doesn’t have enough time to debate every detail of every Act. 2) parliament doesn’t always have the expertise for particular issues 3) DL can be changed easily - allows quicker response to changing circumstances. 4) Parliament can’t always respond quick enough in emergencies |
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What are the three types of delegated legislation? |
1) orders in council 2) statutory instruments 3) Bylaws |
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What is orders in council? |
In times of emergency - by Queen or Privy Council - under Emergency Power Act 1920. - gives effect to EU directives.. European Communities Act 1972 allows this. Made under powers given in the Parent Act. |
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What is an example of Orders in Council? |
Civil Contingencies Act 2004 — act of Parliament that establishes a coherent framework for emergency planning and response ranging from local to national level |
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What is statutory instrument? |
1) major method of law making. - 3000 brought a year introduced by ministers of government departments under powers given by enabling acts 2) orders, regulations, rules, codes 3) national effect 4) amend, update, enforce provisions in existing primary legislation. 5) employ necessary expertises relevant to area concerned. |
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What is negative resolution? |
The statutory Instruments will become law unless rejected by parliament within 40 days. |
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What is Affirmative Resolution |
Debate that follows, and needs parliaments approval before statutory instruments being enacted. |
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3 examples of statutory instruments |
1) Constitutional reform act 2005 -> CA5 2) Serious Organised Crime & Police Act 2005 -> SOCPA5 3) The Legislative & Regulatory Reform Act 2006 -> LRA6 |
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What is a Bylaw? |
1) made by local authorities to cover local issues or by public corporations to cover the services they provide 2) mostly crates under the Local Government Act 1972 or the Local Government (miscellaneous provisions) Act 1982. 3) Notice and Publication in Local press will be required and copies must be available for inspection at local authority offences. No “I didn’t know”s 4) Bylaws must be ‘confirmed’ (approved by relevant Secretary of State) before they can come into force. 5) judicial review, as not subject to affirmative and negative resolution procedures, and quashed as ultra views of go beyond limits of enabling act. |
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4 Example of by laws |
1) Bans on outside drinking 2) skateboarding 3) ban on fishing 4) drinking on the London Underground |
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Controls of Delegated Legislation |
1) general: consultation (talk to people affected) & publicity (in newspapers of area affected - visible to eye) 2) parliamentary: negative & affirmative resolution, super affirmative resolution, enabling act itself 3) judicial (courts): ultra Vires (going beyond their power), reasonableness, judicial review. |
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Why do we need controls on delegated legislation? |
1) doesn’t go through Parliament (people not elected) 2) DL transferring law-making powers from legislative to executive 3) delegated powers must be subject to effective checks & controls to ensure accountability and prevent misuse |
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How do parliament control delegated legislation through the Enabling Act? |
Enabling act creates a framework of who can make laws on certain areas and the limits of these powers. They determine the dos and don’ts of how and what these people make the secondary legislative on. |
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How do Parliament control delegated legislation through negative resolution? |
1) negative resolution is a procedure that allows any MP to annul any DL within a specific time period. 2) Either house (or both) can object a DL. (Except finance which is just Commons) |
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How to parliament control DL through affirmative resolution? |
1) affirmative resolution allows parliament to vote on the DL within a specific time period (28 or 40 days usually) They cannot amend. |
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How do parliament control DL though Super Affirmative Resolution? |
Before .. there was no scope for amendments to be made to statutory instruments once laid before parliament. - due to normal affirmative resolution. IT NOW CAN. |
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What are the merits of statutory interpretation committee in the House of Lords? |
Examines the policy merits of any statutory instrument or regulations that are subject to parliamentary procedure. |
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What is the House of Lords Delegated Powers Scrutiny Committee ? |
1) keeps under constant review, the extent to which legislative powers are delegated by parliament, to government ministers 2) and examines all bills, clauses by clause to check people/ministers haven’t gone beyond their powers. |
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What is judicial review? |
If a member of public feels their rights have been infringed then can take local authority/Minister to court. Court will decide if gone beyond powers. |
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What is judicial review? |
If a member of public feels their rights have been infringed then can take local authority/Minister to court. Court will decide if gone beyond powers. |
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What is substantial ultra vires? |
Person or body has used powers given for one thing for another. Example - made a law they have no power of. |
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What is judicial review? |
If a member of public feels their rights have been infringed then can take local authority/Minister to court. Court will decide if gone beyond powers. |
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What is substantial ultra vires? |
Person or body has used powers given for one thing for another. Example - made a law they have no power of. |
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Case example for substantive ultra vires? |
High Court determined ministers went beyond powers set in parent act, the education Act 1996, when they tried to affect pay and appraisal. |
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What is judicial review? |
If a member of public feels their rights have been infringed then can take local authority/Minister to court. Court will decide if gone beyond powers. |
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What is substantial ultra vires? |
Person or body has used powers given for one thing for another. Example - made a law they have no power of. |
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Case example for substantive ultra vires? |
High Court determined ministers went beyond powers set in parent act, the education Act 1996, when they tried to affect pay and appraisal. |
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What is procedural ultra vires? Example |
A person or boy has failed to follow a procedure requires under the enabling Act given them the powers to make Law. Example - consulting relevant people. |
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What is judicial review? |
If a member of public feels their rights have been infringed then can take local authority/Minister to court. Court will decide if gone beyond powers. |
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Advantages of delegated legislation |
- parliament has limited time and too much to do so delegated frees up some time - parliament lacks the technical expertise in specialist areas such as Health and Safety - its better to leave the detail to experts in the field - can be passed quick in emergencies (orders in council) - more flexible then an Act of Parliament to amend or revoke. - some areas of legislation benefit from local knowledge than centralised views - bylaws |
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Disadvantages of delegated legislation |
- undemocratic system - too much sun delegation takes place - large volume of legislation is down through delegation - lack of publicity of delegated laws compared with acts - difficult to understand - different languages - controls not always effective. |
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What is substantial ultra vires? |
Person or body has used powers given for one thing for another. Example - made a law they have no power of. |
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Case example for substantive ultra vires? |
High Court determined ministers went beyond powers set in parent act, the education Act 1996, when they tried to affect pay and appraisal. |
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What is procedural ultra vires? Example |
A person or boy has failed to follow a procedure requires under the enabling Act given them the powers to make Law. Example - consulting relevant people. |
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Case example for Procedural ultra vires. |
(Aylesbury mushroom case) - agricultural training board v aylesbury mushroom (1972). - minister of labour had failed to consult 85% of mushroom growers on a law that was going to affect them. |
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What is unreasonableness ? Explain |
Courts can declare delegated legislation invalid if it is deemed unreasonable - May be challenged as irrational, if ‘the decision is so outrageous no one would have made it’ ~ lord Diplock |
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Case example for unreasonableness |
Strickland v HayesBoroughCouncil - a bylaw prohibiting the singing of any obscene song or obscene language was found to be unreasonable •associated Picture House v Wednesbury corporation 1948 • cinema stopped under 15s in on a Sunday because Sunday was “family day” |
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What if a judicial control doesn’t comply with human rights? |
A decision will be set aside where an administrative person/ body has used their legislative power in a way which is inconsistent with the Human Rights Act 1998 as in R(Bono)vHarlowDC 2002. |
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How effective are parliamentary controls? |
- a lot of DL means Parliament powers are limited as there is little time for proper scrutiny - parliamentary controls affected by the parameters set by the enabling act - only delegates powers to bodies accountable to them - affirmative resolution procedure gives parliament a stronger role (than negative procedure) but rarely used ~ ineffective? - negative resolution procedure offers little practical control (basically a rubber stamping exercise) - Scrutiny committees have no power to alter the statutory instrument, can only refer back to parliament on certain technical matters. |
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How effective are judicial controls? |
- courts have little control ~ rely on individual starting claim. - rarely funded by legal aid and relies on individuals having the money, will and tenacity to pursue the case. - stringent legal tests to pass for judicial review use (Locus stands and three month time limits) before binding a case which can exclude some people. - many enabling acts give ministers very wide discretionary powers making it difficult for the court to reach funding for ultra vires. - courts can be reluctant to ‘stand up to government’ due to supremacy. |
