Delegated legislation

basics of delegated legislation

  • Created by: Tiffany
  • Created on: 03-11-11 17:44

What is delegated legislation?

When parliament passes on the power authority to make law to another person or body.

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why is delegated legislation needed?

Parliament looks specialist or technical knowledge

saves time

allows greater gflexibility to ammend or revoke legislation

ministers have the benefit of further consultation

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Advantages of Delegated Legislation

1. Time saving – Parliament doesn’t have the time to consider and debate every small detail. DL can be passed quickly to deal with emergency situations (more quickly than statues)

-2. Experts may be consulted when creating new DL because MP’s may not have the necessary expertise (e.g. local councils have more knowledge of the local area

3. Parliamentary Control – statutory instruments are subject to the affirmative/negative resolution or can be scrutinised, by-laws must be approved by GMs, judge can declare DL void – these controls ensures that all DL has the requirements of the enabling act

-4. Democratic – GM who make statutory instruments and approve by-laws are elected, Orders in Council are drafted by the Gov. & approved by privy council+queen are all elected

-DL can be amended/changed quickly & easily as opposed to statues making DL more flexible than a statute

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Disadvantages of delegated legislation

1. Partly undemocratic – DL is not debated in Parliament except those SI’s subject to the affirmative resolution. SI’s are drafted by unelected civil servants & ‘rubber stamped’ by the relevant GM

-2. The amount of DL causes complexity – because there is so much DL - it is impossible for anyone to what the current law is

Also too much delegated legislation is made in private and the public do not hear most of it, so it’s difficult to know the current law

-3. No effective Control– parliamentary&judicial controls are limited – not all SI’s are subject to the affirmative/negative resolution, judicial controls depend upon a person to challenge the validity of a law (but rarely occur because it requires knowledge/finance/time) some DL remain unchallenged

-4. Parliament has insufficient time to scrutinise all DL and they do not review legislation properly

-5. Sub-delegation - Law-making authority may hand down the right to make law to someone else (e.g. SI’s are supposed to be made by GM but are actually made by civil servants

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Controls of Delegated Legislation

there are both parlaiamentary controls and judicial controls.

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Parliamentary controls

Enabling Act: Sets out the limits over delegated legislation

                        -who can make it/what subject it can be on/what procedure must be taken

  By-laws: All by-laws must be approved by the relevant government minister – this is to ensure that all laws are overseen by those with expertise of the technical issue involved.

  Scrutiny Committee: Examines all statutory instruments (SI) – made up of MP’s & peers:Its role is to review SI’s and refer them back to Parliament to be; Considered if they come under the 5 grounds…

Goes beyond the powers given to make the SI under the enabling act

Not made by the correct procedure given under the enabling act

Unclear or defective

Imposes a tax or charge

Has a retrospective effect & enabling act did not give the power for this

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Parliamentary controls

Negative Resolution: Statutory instrument is laid before Parliament for 40 days – if nothing is done the SI becomes a law – but if MP objects to it & is voted against by HOC/HOL it is annulled.

 Affirmative Resolution: SI must be approved by a vote in either houses within 28-40 days – if this procedure is to be used it will be stated in the enabling act – used for controversial/important SI’s

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Judicial courts

A piece of delegated legislation (DL) can be challenged in the High Court through the judicial review procedure. When the DL is made beyond the powers conferred by the enabling act, the DL can be declared ultra vires which means ‘beyond the powers’ and is then found to be void.

Two types of ultra vires:

 Procedural: How the DL is made, if any DL is made without following the procedures specified in the enabling act then it will be declared ultra vires and void

Example: The Aylesbury Mushroom Case – a government minister made an order setting up a training board for the agricultural industry under the powers given to him by a statute, the statute said before making the order the minister must consult any bodies that are involved in the industry. The minister consulted the national farmers union but didn’t consult the mushroom growers’ association – he had therefore not followed the correct procedure under the enabling act.

2.       Substantive: Whether the content of the delegated legislation is within the limits set out in the enabling act. Any DL beyond these limits will be declared ultra vires and therefore void.

Example: A-G V Fulham Corporation – enabling act gave the corporation power to provide clothes washing facilities for the public. The corp. set up a commercial laundry where the council employees washed the residents’ clothes. This was ultra vires because the act did not give authority to the corp. to wash clothes for others.

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Judicial Controls

Unreasonableness: The court can declare the DL to be ultra vires and therefore void on the basis that it is unreasonable.

Example: R (Rogers) V Swindon NHS Trust (2006) – A woman with early stage breast cancer was prescribed Herceptin by her doctor, the NHS Trust refused to provide the non-approved drug because her case was thought to be not exceptional. The court of Appeal said this policy was irrational and unreasonable and therefore ultra vires.

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