Delegated Legislation

HideShow resource information
View mindmap
  • Delegated Legislation
    • Orders in Council
      • Drafted by Govt. but given formal approval by the Queen and Privy council (members of the royal family, retired politicians etc.)
        • The Privy Council also have the power to make Orders In Council
      • Used for these reasons
        • To dissolve parliament in preparation for a general election
        • To transfer ministerial powers between departments
        • To made specific law changes
          • The misuse of Drugs Act
            • Used to change cannibis from a Class  B drug to a Class C drug
        • Emergencies
          • Under the Emwergencies Powers Act
            • Foot and Mouth crisis 2001. (rules about the movement of livestock and closure of farms to prevent the disease from spreading.)
              • Rules about the movement of livestock and closure of farms to prevent the disease from spreading were made.
            • Terrorism (United Nations Measures) Order - 2001.
              • Made it an offence to provide funds to anyone involved in terrorism and allowed for the freezing of such funds
    • ByLaws
      • Made by local government and public corporations
        • Local Authorities
          • Are given power to make by-laws under the Local Government Act 1972. Can be made by local authorities to cover matters within their own areas
            • Carlisle city council passed a by-law to close botchergate from traffic on friday and saturday nights
        • Public corporations
          • British Airport Authorities and railways can enforce rules about public behaviour  on their premesis
            • London underground banned smoking on the tube
      • All by-laws must be approved by the relevant government minister
    • Statutory Instruments
      • Used for
        • Putting much more detail into the framework Act
          • Violent Crime reductions Act 2006 is to reduce violent crime - The Violent Crime Reduction Act 2006 (Realistic Imitation Firearms) Regulations 2007 introduced regulations to control details about imitation firearms to prevent them from looking too realistic
        • Varying of financial limits fees or charges
          • Gaming Act 1968 said the total amount payable on a bingo win should not be more than £250 in one week, but the home secretary was given permission to raise the amount, and did so to £400 in 1975.
          • To increase in minimum wage under the national minimum Wage Act 1998
        • Often as Commencement Orders
          • Made by Govt. Minister to say when an Act or part of it is to come into effect
        • Updating primary legislation to bring it up to date with changes
          • Health and and safety at work Act 1974 was updated  by bringing into effect new standards by the management  of health and saftey at work regulations 1992
      • Ministers and Government departments are given authourity to make regualtions for areas within their responsibility
        • Lord Chancellor have power over legal aid regulations under the Access to Justice Act
        • Minister for transport has power over road traffic regulations under the Road Traffic Act
    • Controls
      • Judicial Controls
        • Procedural Ultra Vires
          • Not followed procedure set out in Parent/enabling Act
            • E.g consultation
              • Aylesbury mushroom growers case
                • Minister for agricultuture tried to set up a training board for horticulture and farming
                  • Failed to consult the aylesbury mushroom growers
                    • Delegated Legislation ineffective
                      • Void
        • Substatitive Ultra Vires
          • Outside/ beyond powers
            • A-G vs Fulham corporation
              • Corporation had power to provide wash-house facilities for residents of Fulham
                • Actually provided those plus staff to do the washing for them
                  • Challenged - beyond power
            • Mininster for health making buses take people to hospital for free (made regulations for transport)
        • Unreasonableness
          • So unreasonable that no reasonable authority could make it
            • Strickland vs. Hayes Borough council
              • Concil tried to ban the singing of rude songs. It is unreasonable as it banned the singing of rude songs in private as well as in public.
      • Parliamentery controls
        • Parliament passes the initial Act, which contains the enabling powers given to the bodies to make delegated legislation and telling them within what circumstances they are allowed to make it and for what purpose.
        • Acting outside of these powers will make the delegated legislation ultra vires (outside of it's power and void)
        • Negative and Affirmative resolutions
          • Affirmative resoultions
            • Only a few statutory instruments are subject to affirmative resolution
            • Usually for matters of some importance, pehaps constitutional
            • They can not become law unless specifically approved by both houses of parliament within a specified period of time (usually 28 or 40 days)
          • Negative Resolution
            • Most Statutory Instruments are subject to Negative resolution
            • The statutory instruments will be a law on the date stated unless rejected within a specified period of time (usually 40 days) of it being put before Parliament
            • In order to be rejected an MP would have to put down a motion to annul it
        • Publication
          • Statutory Instruments Act
            • All Statutory Instruments must be published
              • Now all online
        • Questions to Minister
          • The minister responsible for introducing
        • Parliament can always remove the power
          • The Enabling Act can always be ammended or revoked
      • Delegated Legislation i smade in many cases by non-elected bodies, so many bodies have that power, makingit very important that there should be control of some sort. E.g. By courts and Parliament
    • Advantages
      • Flexibility
        • Statutes can only be revoked or ammended by statute whereas delegated legislation can be put into action quickly and revoked if there is a problem
      • Insufficient parliamentary time
        • Parliament does not have the time to debate every detailed rule
      • Local knowledge
        • Local by-laws can only be drafted by people with local knowledge. The new assemblies in Scotland and Wales can also make delegated leggislation and use their local knowledge
      • Technicality of subject matter
        • Modern legislation ofetn needs detailed technical provisions e.g building regulations or health and saftey regulations. Mp's do not have the expertise to draft these but delegated legislation can be drafted by the relevant experts
      • Future Needs
        • Parliament cannot foresee every problem that arises from statute especially topics like welfare benifits. Delegated legislation can easily by adapted if there is a problem
      • Speed
        • Rules can be made more quickly than by Parliament. Parliament does not sit all the time and it's procedure is slow. Delegated Legislation can respond quickly to emergencies.
    • Criticisms
      • Problem of sub-delegation
        • Power given to Minister in fact work done by civil sevants and merely rubberstamedby minister of that department
      • Large amount of delegated legislation
        • Difficult to discover what the present law is. Lack of publicity, much delegated legislation made in private, not in public
      • Takes law making power away from democratically elected House of Commons, allowing non-elected people to make law
        • Acceptable provided there is sufficiant control, but Parliaments control limited
        • By-laws are made by elected bodies
      • May be difficult to interpret  due to ambiguous or unclear wording
    • Disadvantages
      • Overuse
        • There are vast amounts of delegated legislation each year. Approx. 300 statutory instruments each year. It may be easy to break the law without realising it. Ignorance of the law is no excuse
      • Lack of control
        • In reality controlling delegated legislation is very difficult. Ministers are given such wide powers that ultra vires may not ever issue, because the Minister is unlikely to need to go outside his or her power. E.g if the enabling act gives the minister power to make such regulations as he see's fit
      • Lack of democratic involvement
        • Delegated legislation is drafted by civil servants not by our elected MP's, which might be acceptable if delegated legislation only dealt with technical regulations but increasingly delegated legislation dabbles in politics
      • Subdelegation
        • The power to pass delegated legislation gets passed to people who were not originally given the power, one Act conferred power to make regulations, orders under the regulations under the orders and licemces under the directs
      • The select committee on the Scrutiny committe of delegated powers does make an important contribution has been able to get some changes it however lacks real power and cannot consider the merits of delegated legislation ans its reports have no binding effect
      • Publication has limited benefits
        • Given that the general public are mostly unaware of its existance, the public mostly have no idea bout it and since judicial review depends on individuals callenging that law it may be unnoticed. So legislation which affects a group of people not given to challenging the law will rarely be challenged.
      • The affirmative resolution procedure ensures that parliamentary attention is drawn to important delegated legislation but it is rarely possible to prevent delegated legislation from being passed
  • Corporation had power to provide wash-house facilities for residents of Fulham
    • Actually provided those plus staff to do the washing for them
      • Challenged - beyond power
  • May be difficult to interpret  due to ambiguous or unclear wording
  • Disadvantages
    • Overuse
      • There are vast amounts of delegated legislation each year. Approx. 300 statutory instruments each year. It may be easy to break the law without realising it. Ignorance of the law is no excuse
    • Lack of control
      • In reality controlling delegated legislation is very difficult. Ministers are given such wide powers that ultra vires may not ever issue, because the Minister is unlikely to need to go outside his or her power. E.g if the enabling act gives the minister power to make such regulations as he see's fit
    • Lack of democratic involvement
      • Delegated legislation is drafted by civil servants not by our elected MP's, which might be acceptable if delegated legislation only dealt with technical regulations but increasingly delegated legislation dabbles in politics
    • Subdelegation
      • The power to pass delegated legislation gets passed to people who were not originally given the power, one Act conferred power to make regulations, orders under the regulations under the orders and licemces under the directs
    • The select committee on the Scrutiny committe of delegated powers does make an important contribution has been able to get some changes it however lacks real power and cannot consider the merits of delegated legislation ans its reports have no binding effect
    • Publication has limited benefits
      • Given that the general public are mostly unaware of its existance, the public mostly have no idea bout it and since judicial review depends on individuals callenging that law it may be unnoticed. So legislation which affects a group of people not given to challenging the law will rarely be challenged.
    • The affirmative resolution procedure ensures that parliamentary attention is drawn to important delegated legislation but it is rarely possible to prevent delegated legislation from being passed

Comments

No comments have yet been made

Similar Law resources:

See all Law resources »See all Delegated legislation resources »