Delegated Legislation

  • Created by: Lxcy16
  • Created on: 08-05-18 21:36
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  • Delegated Legislation
    • Orders in Council
      • Drafted in government departments
      • Approved by the queen and the privy council
      • Can be used to transfer responsibility between government departments
      • Bring some acts into force
      • Give legal effect to EU directives under the European Communities act 1972
      • Deals with some aspects of foreign affairs
      • Make law in times of national emergency under the civil contingency act 2004
    • Statutory Instruments
      • Made by government ministers
      • Written by civil servants
      • Come in the form of orders, regulations and codes
      • Apply Nationally
      • Provide detail that is too complex for framework of the enabling act
      • Some are very short
      • Over 3000 made each year
      • Must be approved by parliament
      • Examples include the National Minimum Wage act 1998 and PACE codes
    • By-Laws
      • Can be made by the local authorities and public corporations
      • Local authority laws are made under the authority of the local government
      • Limited to a specific geographical area
      • Must be confirmed by the relevant minister before they come into force
      • Dont need parliaments approval
      • Copies must be available for inspection at local authority offices
      • Local authority by laws include  bans on drinking outside
      • Examples of a public corporation by-law would be a hosepipe ban in hot weather
    • Bought into force by the enabling act
    • Controls
      • Procedural and Substantive Ultra Vires
        • Whoever made the law didn't follow the correct procedure
        • Whoever made the law didn't have the power to
      • The Enabling Act
        • Lays down the nature and scope of the delegated power
          • Effective as it upholds parliamentary supremacy
          • Ineffective as the volume of delegated legislation means that not everything can be checked
      • Delegated powers committee
        • Check the original act against the delegated legislation
          • Effective because if the act is right then the delegated legislation will be correct
          • Ineffective as it doesn't look at the merit of the delegated legislation but instead looks at the scope of the power
      • Negative Resolution procedure
        • Allows MP's to raise objections to new Statutory instruments
          • Effective as either members from either house can raise objections
          • Ineffective as most delegated legislation passes under the 40 day radar in which the legislation has to be screened
      • Affirmative Resolution Procedure
        • Parliament must vote its approval of Statutory Instruments
          • Effective as both houses need to agree on the subject
          • Ineffective as it takes time and destroys the idea that delegated legislation saves time
      • Scrutiny Committee
        • The Main committee that scrutinises statutory instruments to ensure they do not impose a tax or charge, appear to have retrospective effect or appear to be in substantive ultra vires
          • Effective as many statutory instruments can be subject to some scrutiny
          • Ineffective as the delegated legislation cannot be changed by the committee, only referred back to parliament
      • Super affirmative Resolution Procedure
        • Approval of the Statutory instrument has to be approved within 60 days
          • Effective as it gives parliament more control
          • Ineffective as it takes lots of time
      • Judicial review
        • Takes place in administration court in QBD and allows parties to challenge the lawfulness of administrative decision making
          • Effective as it gives ordinary people power to challenge the delegated legislation
          • Ineffective as the delegated legislation can only be void and not amended
    • Key Cases
      • R V Home Secretary ex parte Home Brigades Union (Substantive Ultra Vires)
        • Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers.
          • There was no power in the courts to compel the minister to bring the Act into effect, but his alternate scheme was unlawful.
      • Aylesbury Mushroom (Procedural Ultra Vires)
        • The Secretary of State proposed to introduce new regulations for the training of agricultural workers. It sent a notice inviting representations from a body representing the mushroom growing industry, but the letter was not received.
        • Consultation requires more than the mere giving of notice, in this case the sending of a letter: ‘the essence of consultation is the communication of a genuine invitation, extended with a receptive mind, to give advice’.
      • R(Rogers) V Swindon NHS Trust (Ultra Vires if unreasonable)
        • The claimant challenged the policy of her local health authority not to allow prescription to her of the drug Herceptin.
        • The policy had not been settled upon lawfully and was to be set aside.
    • Done to save time in Parliament

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