Delegated Legislation

    Cards (23)

    • Delegated Legislation:
      a law that is made by a person or body to whom Parliament has delegated a law making power
    • The Enabling Act:
      • Act of Parliament that gives another body the power to make laws
      • Example: Criminal Justice Act 2003 delegated powers to the secretary of state to make laws concerning areas of criminal law e.g. conditional cautions
    • Why we need delegated legislation:
      • Lack of Parliamentary time - parliament does not have enough time to consider + debate every small detail
      • Technical expertise can be used - parliament may not have necessary technical expertise or knowledge
      • More extensive consultation - regulations required to be accurate and workable
      • Quicker - an act through parliament takes a considerable amount of time + may not be able to pass an act quick enough
      • Easier to amend - can be amended or revoked easily if required
    • Types of delegated legislation:
      • Statutory Instruments
      • Authorises: Government ministers/departments to make laws
      • Effect: National effect
      • Characteristics: can come in four different forms; regulations, orders, rules and codes of practice
      • can be introduced by negative or affirmative resolutions
      • Example: The Rights of the Subject, Protection of Freedoms Act 2012 - old crime of homosexual sex will not show up on criminal records
    • Types of delegated legislation:
      • Orders in council
      • Authorises: King and the Privy council
      • Effect: national or local effect
      • Characteristics: drafted by government minister + then approved by the king or 3-4 privy councillors - can be used in an emergency situation or to transfer responsibility or transfer power to different countries within UK
      • Example: The Northern Ireland (Restoration of Delegated Powers) Order 2000 - made under the Northern Ireland Act 2000
    • Types of delegated legislation:
      • By-laws
      • Authorises: Local authorities or public corporations
      • Effect: local effect
      • Characteristics: cover matters of local concern - effects the public using their services + must be approved by relevant government departments
      • Example: The Local Government Act 1972 - local authorities able to make by-laws on areas such as local highways
    • Parliamentary controls of delegated legislation:
      1. The Enabling Act
      • Parliament sets out boundaries
      • Act clearly defines the nature and scope of the power
      • if delegated body abuses the power it will be declared void
      • Can repeal or amend the Enabling Act to take away the delegated powers
      • Example: The Police and Criminal Evidence Act 1984 - Enabling Act that grants the Minister or Justice to make laws regarding the powers of the police
    • Parliamentary controls of delegated legislation:
      Scrutiny Committees:
      1. Delegated Powers scrutiny committees:
      • Review the extent to which legislative powers are delegated
      • The committee then report its findings to the House of Lords - but they have no power to change it
      • 2. Joint scrutiny committee on statutory instruments
      • power to draw to the attention of both House of Parliament to a statutory instrument that is unlawful or exceeds its powers
    • Parliamentary controls of delegated legislation:
      3. Laying Before Parliament
      • Affirmative Resolution:
      • Laid before Parliament and they are required to vote to show its approval of the delegated legislation
      • Negative Resolution
      • Laid before Parliament but there will be no vote
      • and if by the end of 40 days the instrument will become law UNLESS Parliament has objected to it within the allocated time
    • How effective are Parliamentary Controls:
      • The Enabling Act:
      • allows parliament to set limits on the powers they delegate
      • parliament can repeal or amend the Enabling Act to take away the powers
      • The Enabling Act upholds Parliamentary Supremacy
      • the powers in the Enabling Act can be too wide and unclear
      • the Enabling Act doesn't uphold parliamentary supremacy
      • easy for delegated body to exceed their powers under the Enabling Act
    • How effective are Parliamentary Controls:
      • Scrutiny Committees
      • look at the proposals of the Enabling Act before it is enacted
      • They ensure that only appropriate powers are being delegated
      • avoids abuse of power
      • the committee cannot make any changes themselves and only report back
    • How effective are Parliamentary Controls:
      • Affirmative Resolution
      • parliament has a stronger role when using this as they actually vote to accept the statutory instrument
      • Extra scrutiny is provided
      • the method is rarely used
      • very time consuming
      • abuses of power might not be identified
    • How effective are Parliamentary Controls:
      • Negative Resolution
      • statutory instruments are checked before they come into force
      • prevents abuses of power
      • most statutory instruments are not checked under this process
      • it doesn't detect abuses of power before statutory instruments become laws
    • Court controls on delegated legislation:
      Ultra Vires means the person has gone beyond their power
    • Court controls on delegated legislation:
      1. Substantive Ultra Vires
      • means a body has exceeded their powers when making the piece of delegated legislation e.g. by making laws in an area they're not allowed to
      • Example: Case - R v Home Secretary, Ex Parte Fire Brigades Union - HOL ruled that the home secretary had acted unlawfully + had exceeded the powers given under the Criminal Justice Act 1988
    • Court controls on delegated legislation:
      2. Substantive Ultra Vires for unreasonableness
      • body has gone beyond the powers given to them in the Enabling Act by making an unfair or unreasonable Act of law
      • Example: Wednesbury case, the Court of Appeal stated that in certain circumstances the courts could override decisions
    • Court controls on delegated legislation:
      3. Procedural Ultra Vires
      • courts can also decide that a piece of legislation is ultra vires if the correct procedure has not been followed
      • Example: Aylesbury Mushroom case - failed to follow the procedure set out in the Enabling Act as he failed to consult the Association
    • Effectiveness of court controls:
      • hard for the courts to control delegated legislation
      • many Enabling Acts give wide powers
      • are too vague
      • it is too easy for the delegated bodies to exceed what Parliament intended
      • courts cannot control delegated legislation when it is being made - only when someone brings case to court
      • the law will already be in force
      • court controls only occur after the legislation is in force so it might be too late
      • this impact society as law might go beyond their power
    • Effectiveness of court controls:
      • courts have power to declare the delegated legislation void
      • no longer stands
      • highlights the issue to Parliament and the public - can read about court cases
      • can act as a deterrence for delegated bodies + can get rid of it
      • provides a check on any law making
      • courts check delegated powers - so wont go beyond their powers
      • highlights when bodies have gone too far
      • ensures that delegated bodies uphold parliamentary sovereignty
    • Delegated Legislation A03: Advantages
      • use of delegated legislation saves time and money for parliament
      • making legislation within Parliament takes a long time (ping pong)
      • parliament does not have the time to debated every detail
      • delegating the powers to make regulations saves valuable time as experts can do it quicker
      • parliament can concentrate on bigger policy issues not on certain areas
      • allows for the use of expertise
      • MPs do not have all necessary knowledge to make laws on all issues
      • allows people with knowledge to make the law
      • saves parliamentary time
    • Delegated Legislation A03: Advantages
      • allows for more thorough consultation
      • ministers can consult and debate more than parliament as the regulations are being drawn up
      • minimises errors in the legislation - spot them quicker
      • regulations can be on complex issues - ensures they are fit for purpose and workable
      • range of controls in place
      • multiple checks to ensure powers are not abused
      • parliamentary controls + court controls
      • upholds parliamentary sovereignty - parliament has final say
    • Delegated Legislation A03: Disadvantages
      • using delegated legislation to make laws is undemocratic
      • made by unelected bodies - not everyone has voted in
      • parliament is not the supreme law making body
      • bylaws are made by local councillors who are locally elected
      • there is an issue of subdelegation
      • law making powers can be sub delegated and given to someone not named in the Enabling Act
      • laws being made by unelected people
      • society feels like too many laws are being made by civil servants and stamped by Ministers in Parliament
    • Delegated Legislation A03: Disadvantages
      • vast amount of delegated legislation makes it very complicated to use
      • huge amounts are made each year - over 3000 staturoty
      • difficult to discover what the current law is as there is lots of places to look
      • delegated legislation is not easily published - apposed to Acts of Parliament
      • too much delegated legislation is made privately
      • language used is too complex
      • same criticism of parliament
      • obscure and difficult language
      • hard for lay people to understand - goes against the rule of law