Delegated Legislation

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Delegated Legislation

  • Delegated Legislation is law made by a person or body other than parliment, but made with the authority of parliment.
  • Authority is laid down in a PARENT / ENABLING ACT.
  • Parliment will include a framework of the law in the Enabling Act and will then delegate the powers of adding the legal details to someone else.
  • Eg. the Criminal Justice Act.
  • Parliment will pass an Enabling Act which will the give the right to create one of three types of Delegated Legislation which can be made by:
    • Orders in Council = Queen and Privy Council
    • Statutory Instruments = Goverment Ministers (eg, minister of education)
    • Bylaw = Local Authority 
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ORDERS IN COUNCIL

  • Queen + Privy Council have the authority to make orders in council
  • Privy Council = Prime Minister + other leading members of the goverment 
  • orders in Council can be made on:
    • Giving legal effect to European Directives 
    • Transferring reponsibility beween goverment departments
    • Enforcing Acts of Parliment 
  • CONTINGENCIES ACT 2004 = gives Privy Council the power to make laws in emergency situations when Parliment is not sitting.
  • Misuse of Drugs Act = Privy council changes Cannabis to Class C, parliment ordered then to change it back to Class B.
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STATUTORY INSTRUMENTS

  • Rules and Regulations made by Goveremnt Ministers for areas under their particular responsibility 
  • Eg. Minister for Transport will deal with road traffic regulations
  • major method of law making = 3,000 statutory instruments enfored each year
  • Can be very short and cover one point eg the Minimun wage or very long and complex
  • Example = CODES OF PRACTICE UNDER PACE BY MINISTER OF JUSTICE 
  • THE LEGISLATIVE AND REGULATORY REFORM ACT 2006 = gives Ministers power to make any prosvission by order if it will remove or reduce "burden" resulting from legislation.
  • A burden for this purpose is definded as:
    • A Finacial Cost 
    • Administrative Inconvenience
    • an obsticle to efficiency, productivity or profitability.
    • a sanction whcih affects the carrying on any lawful activity
  • Means that Ministers can change Law even if the original Law did not give them the power to do so. However the goverment made it clear that orders under that Act cannot be used to impement highly controversial reforms
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BYLAWS

  • Made by a local authority to cover matters within their own area eg a County Council can pass laws affecting the whole county.
  • Many local bylaws involve traffic control, such as parking restrictions.
  • Bylaws can also be made by public corporations and certain companies for matters within their juristiction which may involve the public.
  • e.g. railways can enfore rules about public behaviour on their premises.
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THE NEED FOR DELEGATED LEGISLATION

  • parliment does not have TIME to consider and debate every small detail of complext regulations.
  • parliment does not have the TECHNICAL EXPERTICES or KNOWLEDGE needed for regulations on things such as local parking.
  • Modern society has become very techical and complex so it is Impossible for parliment to have all the knowledge needed for things such as enviromental safety, technology, industrail problmes ect. = better for parliment to debate on the key principles and leave the details to be filled by people who have the expert knowledge needed.
  • Ministers have the benefit of further consultations befor regulations are drawn up. This is important for technical issues where it is important that the regulation is accurate.
  • Some Acts that give delegated legislation make it clear that there must be a constulation.e.g.= Code of Practice under PACE must have a constulation with -General council of the Bar -The Law society  -people who represent the interests of the police authorities.
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CONTROL BY PARLIAMENT

The ways in which parliament controls what delegated legislation is made is by:

  • The Enabling Act 
  • Delegated Powers Scrutiny Committee
  • Laying before parliament 
  • Questions by MP's

ENABLING ACT:

  • Parliament has control over what powers are delegated and to whom
  • It also states what type of law is to be made and where they are to be enforced 
  • It also sets out if the Goverment department needs to consult other people 
  • Parliament can also repeal powers in the Enabling Act at any time.

DELEGATED POWERS SCRUTINY COMMITTEE:

  • Established in 1993 in the Supreme Court to consider if there has been a missuse of delegated legislative power in a Law. Can then report back to the House of Lords before the committee stage but no power to amend the Bill.
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CONTROL BY PARLIAMENT (2)

LAYING BEFORE PARIAMENT:

  • Affirmative Resolutions-
    • small number of statutory instruments will be subject to a affirmitive resulution = it will not become a Law unless it is approved by parliament.
    • The need of an affirmative resolution will be included in the Enabling Act.
    • e.g. Affirmative resolution is required before a new Code of practice under PACE can come in to force.
    • However parliament cannot amend the statutory instrument, they can only approve it, annull it or withdraw it.
  • Negetive Resolution-
    • SI will become a Law unless it is rejected by Parliament wihtin 40 days.
    • Ministers can also be questioned by MP's about things such as proposed regulations and the work in their department.
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CONTROL BY PARLIAMENT (3)

SCRUTINY COMMITTEE:

  • Reviews all statutory instruments and might draw the attention of both Houses in Parliament to points that need further consideration.
  • This Review is technical and is not based on policies, the main grounds for reffering a SI back to parliment are:
    • If it imposes tax or charge 
    • have a retrospective effect which was not provided by the Enabling Act 
    • gone beyond powers or used it in an unusual way 
    • unclear or defective in some way
  • can only report back if the scrutiny committee has no power to alter the SI
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The Legislative and Regulatory Reform Act 2006

  • Must consult various people such as:
  • organisations which are representative of interests and affective of the proposal
  • the Welsh Asembly 
  • The Law commission where appropriate 
  • Orders made under the power of this Act must be laid before parliment.
  • 3 possible procedures:
    • Affirmative resolution procedure
    • Negetive resulotion procedure
    • Super affirmative resulotion procedure -under this the minister must have regard to:
      • Any Representations
      • Any resolution of either Houses of Parliament 
      • Any recommendations by a committee of either houses whoa are asked to report on the draft order.

The super affirmative resulution procedure gives parliament more control over DL made under the LARRA 2006

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CONTROL BY THE COURTS

  • DL can be challenged in the courts on the grounds of it being ULTRA VIRES (beyond the powers that parliament granted in the Enabling Act
  • Validity of DL can be questioned through Judicial review procedure or it may arise in a civil claim between 2 parties or on appeal.
  • Any DL that is ruled as ULTRA VIRES is no longer effective.
  • R V HOME SECRETARY, EX PARTE FIRE BRIGADES UNION = changes made to the Criminal Injuries Compensation scheme went beyound powers.
  • The courts will assume that unless an Enabling Act allows it , there is no power to do any of the following:
    • make unreasonable regulations- Strickland v Hayes Borough Council, bylaw prohibitted the singing of ballards or songs with obscene language. so ULTRA VIRES 
    • levy taxes
    • Allow sub-delegation 
    • AYLESBURY MUSHROOM CASE = ULTRA VIRES as correct procedure was not used. Minister Of Labour had no consulted with the Mushroom Growers Association.
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