Delegated Leg

• DL = law made by someone other than Parliament but with authority of parliament. Authority is laid out in a Parent Act (enabling act)

  Parent Act contains : framework of law to be made,

  who must be consulted

  how the powers must be used

  restrictions
• Statutory Instruments = made by Gov ministers.

  • given powers in parent act
  • 3000 SI's made a year
  • National in effect
• Statutory Instruments - examples:

  1. update laws = Under National Minimum wage Act 1988 (PA) - allowed minister to change minimum wage in line with inflation
  2. to add detail to laws = under Educational Reform Act 1988 (PA - secretary of state for education decided what will be taught in each subject at each key stage
  3. allow experts to make laws = under s17 of the Road Traffic Act 1988 (PA) - minister of transport made it compulsory for motorcyclists to wear helmets
• SI's - introduced

  • Affirmative Resolution - more control to Parliament and need Parliament approval before enacted
  • Negative Resolutions - Parliament have 40 days to accept/reject SI or automatically becomes law - less important laws
  • Super affirmative Resolution - parliament have more stringent control and power to scrutinise. Parliament must produce report. Each house must expressly approve SI before it becomes law
• Bylaws = Made by local authorities or other public bodies to make bylaws for their area

  • public bodies include - utility companies, universities and the National Trust
  • only involve matter of local concern
  • The Local Government Act 1972 is the general Parent Act councils use to make laws
• Bylaw's examples:

  1. Birmingham council are given authority to make laws e.g. double yellow lines limited parking
  2. Clean Neighbourhoods & Environments Act 2005 = councils make bylaws that punished dog owners for allowing them to foul in public places = £1000 fine
  3. Water boards (severn trent) = allowed them to charge people for providing fresh water to homes and removing waste sewage
  4. London Underground = ban smoking on their property before general smoking ban was made
• Orders in Council = laws made by monarch and privy council

  • Privy council = king, 300 past and present gov ministers, all leaders of main political parties and speaker of HOC
  • Given powers in the Emergency Powers Act 1920 & Civil Contingencies Act 2004
  • allows them to make laws when parliament isn't sitting or in emergencies
• Example of Orders in council

  1. During foot and mouth crisis = gave army power to cull all animals in a 5mile radius to affected farms - emergency
  2. Downgrade Cannabis to a class C drug in 2003 - Parliament wasn't sitting
  3. Fuel Crisis 2000 = gave authority to army to clear access to fuel depots
  4. Banned dealings with Bin Laden, Al-Qaeda etc in 2005
• use DL because it saves time of Parliament, experts are involced and their easier to change
• why Control DL:

  • prevent misuse of power
  • ensure accountability
  • parliament soverenity + seperation of powers
• 2 controls - parliamentary and judicial
• Parliament control

  1. Parliament passes original PA to limit powers contains: framework of law, who to be consulted, how powers to be used, restrictions
  2. scrutiny committee = Members of HOC & HOC. review all Stat.Instruments and report to Parliament, - look for faults (anything going beyond power, badly drafted, impose taxes or confusing) - reports given to P = will question minister of the SI. Scrutiny committee cant act on anything they find, only report to P. - Good since committee is HOC = elected MP's to enforce laws beneficial to us
  3. Negative, Affirmative & Super Affirmative Resolutions
• Scrutiny Committee = Members of HOC & HOC.

  • review all Stat. Instruments and report to Parliament,
  • look for faults (anything going beyond power, badly drafted, impose taxes or confusing) -
  • reports given to P = will question minister of the SI.
  • Scrutiny committee can't act on anything they find, only report to
  • Good since committee is HOC = elected MP's to enforce laws beneficial to us
• Affirmative Res =

  • less common
  • applies to SI's of mid-importance
  • Parliament needs to approve before enacted
  • can withdraw/annul it
  • very effective but slow
• Super Affirmative Resolution =

  • most important SI's
  • Parliament have more stringent power and control to scrutinise DL
  • both houses produce reports on opinions of SI
  • each house expressly approve DL before can be made
  • 
    
  • Grants to much freedom = must be very sure about law
• Negative Resolution =

  • most common procedure
  • doesn't need debate
  • if Parliament don't approve/reject in 40 days = automatically becomes law
  • only for less important laws

  not effective but quick
• DL can be challenged in High court KBD through Judicial review.

  only people affected by law can challenge DL = Local standi (power to challenge and won't be rejected)

  They can declare Dl ultra vires (beyond powers of PA) or intra vires (within powers)
• 3 Types of Judicial control :

  1. procedural UV
  2. Substantive UV
  3. unreasonableness
• Procedural UV

  • minister/department haven't followed procedures in PA

  Case - Aylesbury Mushroom Case

  • training board introduced for farmers to pay for it
  • mushroom growers weren't consulted = court decided they didn't need to pay for training board
• Substantive UV = powers given to person making DL in PA have been exceeded.

  • gone beyond power

  Case - Fulham Corporation Case

  • authority given to build public washing facility
  • made laundromat instead
• Unreasonableness = Dl made is unjust, no reasonable body could have made it.

  Case - Strictland V Hayes Borough Council

  • PA gave power to punish people singing obscene songs in public
  • but bodies banned people using bad language in private
  • how would they know unless someone told authority?