delegated legislation

• what is delegated legislation?


  this is when parliament passes its power to another law making body
• what is secondary legislation?


  authority is set in an enabling act e.g. PACE gives power to other bodies to make codes of practice
• what are the types of delegated legislation?


  bylaws, orders in council, statutory instruments
• why is delegated legislation used?


  it saves parliament time to focus on acts that effect the general public. parliament doesn't always have the expertise to deal with every new law e.g. issues in a local area. it also allows laws to be made quickly to which avoids the lengthy act making process.
• what is a bylaw?


  these are made by local authorities to cover issues in their local area. they can also be made by public corporations and certain companies can enforce rules about public behaviour on their premises. if a bylaw is broken a defendant is faced with a fine
• what are some examples of bylaws?


  banning the use of alcohol in public places, parking restrictions, and when dogs can be exercised on the beach. an example of a passed bylaw is one from trains for London where they banked drinking on the tube
• what is an order in council?


  this is when the king and privy council have the authority. the privy council is made up of the prime minister and other leading government members. orders in council can be used in an emergency if parliament arent sitting under the Civil Contingencies Act 2004. they can be used to bring acts into force. an enabling act must exist to allow the privy council to change the law e.g. the Misuse of drugs act 1991
• what is an example of an order in council?


  The Misuse of drugs act 1991 allows the privy council to change the class of cannabis from B to C and then back to B. petrol strikes of 2000 an order in court was made to ensure the delivery of petrol to emergency services. curfews during the London riots 2011
• what are statutory instruments?


  these are rules and regulations made by government ministers using an enabling act. these can be very short and are made by the relevant government department in areas of the ministers responsibility. In other words they are experts in specific areas of knowledge. they can be made in two ways : affirmative resolution procedure and negative resolution procedure
• what is negative resolution procedure?


  a way of making a law. means that the statutory instrument automatically becomes law if it is not objected to within 40 days
• what is affirmative resolution procedure?

  a way of making a law. means parliament must approve the statutory instrument before it becomes law
• what are some examples of a statutory instrument?

  the national minimum wage act is the parent act that allows the department for work and pensions to increase the minimum wage each year. police and Criminal Evidence Act 1984 has guidelines for the police to follow called codes of practice. The Ministry of justice can update these via a statutory instrument in an affirmative resolution procedure
• what are the two types of control on delegated legislation?


  parliamentary controls and judicial controls
• what are the parliamentary controls?


  scrutiny committees, the enabling act, affirmative resolution procedure, negative resolution procedure, questioning of ministers
• what are the judicial controls?

  judicial review, ultra vires, procedural ultra vires, Aylesbury mushroom, substantive ultra vires, Wednesbury unreasonableness
• what is a scrutiny committee?


  A scrutiny committee is a group of individuals responsible for examining and reviewing the actions and decisions of a government or organization.
• what is an enabling act?


  can set out limits on what types of laws can be made through affirmative resolution procedure and negative resolution procedure
• what is questioning of ministers?


  the process by which MPs in the house of commons can question minsters about the proposed or current delegated legisaltion
• what is judicial review?


  this is when an individual challenges the lawfulness of a public body's decision in court. heard in the kings bench division in the high court
• what is ultra vires?


  ultra vires means going beyond your powers and is when an individual claims the court went beyond their power. there are two types : procedural ultra vires and substantive ultra vires
• what is procedural ultra vires?


  this is when the secondary body has not followed the procedures set out in the parent act
• what is Aylesbury mushroom?


  mushroom growers were not consulted before new rules were introduced which was a procedural ultra vires
• what is substantive ultra vires?


  when the law making body has gone beyond its powers under the enabling act with the legislation. for example, ann summers v job centre it was held that they should not have been banned for the job ad
• what is wednesbury unreasonableness?


  the court considers if the decision is so unreasonable that a sensible person would not have arrived at it
• advantage of the effectiveness of the controls - short and quick process

  one way the controls of delegated legislation are effective is the process is quick and not extensive. there is a sensible and logical amount of procedures put in place by the government to ensure that delegated legislation can be challenged if necessary. on the other hand, if there were too many controls then this would defeat the purpose of having delegated legislation. the amount of controls is appropriate to ensure than dl maintains order whilst still being flexible and effective
• advantage of the effectiveness of the controls - scrutiny committees

  one way the controls are an effective way of handling delegated legislation is through scrutiny committees. scrutiny committees check the delegated legislation thoroughly and bring any mistakes to the attention of parliament. this reduces the amount of errors passed through the process and makes the new laws fair and fit for purpose. however, the SCOM doesn't have the jurisdiction to change a law so their power is limited.
• advantage of the effectiveness of the controls - democratic process

  one way the controls are effective is that they allow for the process to remain democratic. parliament has to approve any statutory instruments made via an affirmative resolution procedure. this shows that they maintain control whilst still solving public issues. if the public aren't happy with the laws passed then they can vote for a different representative in the next election. this shows that the process is still democratic.
• advantage of the effectiveness of the controls - judicial review

  one way in which the controls are effective is the amount of review they go through before being passed as law. judicial review allows for individuals to challenge a public body's decision which means that the public is protected from abuses of power. ultra vires covers a wide range of issues that mean that the public can remain protected but still part of the process of law-making
• disadvantage of the effectiveness of the controls - negative resolution procedure

  one way in which the effectiveness of the controls is limited is the negative resolution procedure. most statutory instruments arent looked at and therefore become law automatically through this process. This means that important laws affecting the whole country are being made with little security and consultation. a law may negatively impact a community as it became law automatically rather than being discussed
• disadvantage of the effectiveness of the controls - limited power

  one way the controls aren't effective is that the power of the scrutiny committed is limited. they cannot amend statutory instruments and must consult parliament about any errors which is time-consuming. they may also not have the expertise to understand certain laws being passed which could negatively impact the process of accepting or denying it as a law.
• disadvantage of the effectiveness of the controls - judicial review

  one way the effectiveness is limited is that judicial review relies on an individual being aware that their rights have been breached. because the law is not always clear and uses complex language, members of the public may not raise issues when they have had their rights breached. this means that errors continue and aren't fixed appropriately
• disadvantage of the effectiveness of the controls - delays

  One way the controls aren't effective is that they may cause some delays. because judicial review is a civil process it means that the review of new laws may cause delays in the civil courts. this means that a claimant may suffer injustice whilst awaiting their trial.
• advantage of using delegated legislation - saves time

  one advantage of using delegated legislation is that it saves parliament time. because the laws are made by smaller representatives it allows for many statutory instruments to be passed each year. this also allows for more time to be spent by parliament creating and reviewing laws that will affect the whole country
• advantage of delegated legislation - bylaws

  one advantage of delegated legislation is bylaws. bylaws are made by elected councils which means the process is democratic. this upholds the rule of law and allows for the public to be involved in law making. councils also have local knowledge which allows them to make laws based on local concerns. they may have more knowledge of issues surrounding that area than parliament which allows for effective laws to be passed
• advantage of delegated legislation - expert knowledge

  one advantage of using delegated legislation is that expert knowledge can be used when applying and making statutory instruments. these are made by the relevant government department which allows for detailed laws to be made. this is an advantage because it allows for accurate delegated legislation that is free from errors
• advantage of delegated legislation - emergencies

  one advantage of delegated legislation is that it can be used in an emergency. for example, if parliament is unable to sit and review the law then it can still be passed if it is in the public immediate interest. this protects the public as laws can be passed quickly. for example petrol was delivered to emergency vehicles during the petrol strike of 2000
• advantage of delegated legislation - controls

  one advantage of using delegated legislation is that there is a wide range of controls to ensure that public bodies are not acting ultra vires. individuals have the power to seek judicial review if they feel their rights have been infringed. this means that the controls are effective in maintaining the rule of law and the protection of the public.
• disadvantage of delegated legislation - undemocratic

  one disadvantage of using delegated legislation is that it is undemocratic. this is because unelected people are making laws which goes against the main rule of law. parliament is sovereign and should be the only law making body. this means that the amount of influence the public have on law making is limited as not all people are chosen to create these laws. however, bylaws are democratic as councils are elected but they receive a low amount of votes
• disadvantage of delegated legislation - public awareness

  one disadvantage of delegated legislation is that there is limited public awareness. because there is such a high volume of legislation created each year not may receive much press. this can create a lack of public awareness about laws that affect them. For example a person can be fined for breaking a bylaw that they are not even aware of. this can create injustices within the system.
• disadvantage of delegated legislation - hard to understand

  one disadvantage of delegated legislation is that statutory instruments contain complex and difficult language. this can make laws difficult to understand which may lead to statutory interpretation from the judiciary. they may interpret laws incorrectly which may go against parliaments intention