DELEGATED LEGISLATION

• what is delegated legislation?


  Delegated legislation is secondary legislation and is law made by some other person or body other than parliament - but with the authority of parliament.
• where does authority come from?


  the authority usually comes from an Act of Parliament (primary legislation), such acts are called Enabling Acts. These acts are a mechanism by which parliament limits and controls the power other people and bodies have to pass secondary legislation by stipulating how it should be used.
• what are the types of DL?

  Bylaws - used to deal with local issues eg restricting open air drinking, airport regulations

  Orders in Council - often used in an emergency or when Parliament are not sitting eg emergency powers of the Privy Council

  Statutory Instruments - public issues made by Government Ministers and their departments
• orders in council

  made up of the king and privy council (former MPS, Prime ministers, house of lords, cabinet ministers)

  
  

  laws can be made:

  when transfering power between gov department --> scotland act 1998 order 1999

  dealing with foreign affairs --> Afghanistan (UN sanctions) order 2001 --> offence to fund taliban

  national emergency --> terrorism (UN measure) 2001

  amend other laws --> misuse of drugs act 1971 --> turned cannibis back to class B drug.
• statutory instruments.

  These are made by government ministers who are specifically members of the cabinet. 15 departments.

  each cabinet minister has there own 'portfolio' (topic) responsible for a key area. Finance, Education, health.....

  the law they make is called a regulation and approx 3000 made a year

  they can cover small matters or complex and very detailed ones

  SI can amend pre-existing acts of parliament

  EG. the dangerous dog act 1991 --> allows home secretary to add more dangerous breeds if needed
• byelaws

  made by local councils for that area

  the local council will make laws to suit their location:

  relating the behaviour of the public (Railways Act 1993),

  parking matters

  dog fouling (Clean Neighbourhood and Environments Act 2005)

  alcohol-free zones

  by-laws can be created regulatory bodies (such as the law society to set a standard for lawyers)

  MUST BE CONFIRMED BY RELEVANT GOVERNMENT MINISTERS
• parliamentary control of DL

  The Enabling Act

  Negative Resolution procedure

  Affirmative Resolution procedure

  Scrutiny committees
• the enabling act


  specifies who can make changes and limits what they can change (ensures they cant abuse their powers, ensures that changed made are relevant and necessary)

  will say if they need to contact specialists before making changes (ensures scrutiny by parties that can be affected, ensures that there are no loopholes)
• affirmative resolution

  The is where Parliament is required to vote its approval of the delegated legislation on a given date during the time it is laid before Parliament.

  parliament cannot amend an act. only approve, annual or withdraw.
• negative resolution


  Under this procedure the SI must be laid before Parliament for 40 days. At the end of this time the instrument will become law unless Parliament has objected in the meantime
• scrutiny committee


  small group of ppl to look at SI (can only check once law is passed)

  also a second scrutiny committee in the HOL

  review all SI and feedback to parliament if:

  it imposes a tax

  is has a retrospective effect not provided for by the act

  if they go beyond power of the act

  if it is unclear or deffective
• types of ultra vires


  Procedural ultra vires

  Substantive ultra vires

  Substantive ultra vires for unreasonableness (aka Wednesbury reasonableness)
• ultra vires


  Ultra vires translates to 'beyond the powers'. It is used to describe an act which requires legal authority or power but is then completed outside of or without the requisite authority.
• substantie ultra vires

  Where the body or individual making the decision has used authorised powers in an unauthorised way e.g. went beyond their powers (could be by adding a tax)

  R v Secretary pf State for health, ex parte Pfizer Ltd

  SOH advised drs to prescribe viagra beyond his powers.
• Substantive ultra vires for unreasonableness (aka Wednesbury reasonableness)



  where the law itself is unreasonable in its nature or unworkable