Delegated Legislation

What is delegated legislation?

The power to make or edit laws given to another body by the government

What are the three types of delegated legislation?

By laws, Statutory instruments and Orders in Council

Before power is delegated, what must parliament do?

Pass an enabling act

What do enabling acts do?

Create frameworks, set limits and outline procedures

What is an example of primary legislation?

Enabling acts

What are the examples of secondary legislation?

By laws, Statutory Instruments and Orders in Council

What is an example of an EA and the DL that came from it?

The Education Act 1946 - created by the minister for education- created school attendance regulations

What is parliamentary sovereignty?

Where parliament has complete control

What is the Privy Council?

A formal body of advisors made of senior politicians (Hoc, HoL)

What are Orders in Council?

Laws passed by the privy council

What is an example of an OiC?

The Dangerous Drugs Act 1920 - in 1971 reclassified cannabis from class c to class b

What are Statutory Instruments?

Regulations made by government ministers to alter or implement the provisions of an Act

What is an example of SIs?

Dangerous Dogs Act 1991 - 2024 Home Secretary to add more breeds like XL Bully

What are By laws?

Made by local councils or other public bodies to deal with local issues

What is an example of a by law?

Fines for people who let their dog foul in public

What is the most common form of DL?

SIs

Why do we have controls?

To make sure the process is not abused

What are the two types of controls?

Controls by parliament and controls by the judiciary

What are the controls by parliament?

-The EA

-the Delegated Powers Scrutiny Committee

-Affirmative resolution procedure

-Negative resolution procedure

-Joint Select Committee on SIs

What is the Delegated Powers Scrutiny Committee in the HoC?

They consider whether the provisions of a bill passing through parliament are following DL rules

How is an EA a control?

It is set out with limits within which the DL must be made, for example:

-which minister can make the regulations

-types of laws made (for the whole country? Only for certain places?)

Parliament can also repeal an EA at any time

What is the affirmative resolution procedure?

A small number of SIs will not become law unless approved by parliament, who cannot amend the EAs, only approve, annul or withdraw them

What is negative resolution procedure?

When an SI will become law unless it is rejected by parliament within 40 days

What is the Joint Select Committee on SIs?

They review and check SIs once in force and draw attention to parliament for area that need further consideration. This can be done if:

-it imposes a tax or charge

-it has a retrospective effect

-it goes beyond powers given by the EA

-it makes unusual or unexpected uses of these powers

-it is unclear

They cannot amend the legislation

What are the controls of the judiciary?

-judicial review

-procedural ultra vires

-substantive ultra vires

-wednesbury unreasonableness

What is judicial review?

Where an individual case is brought to the court for a judge to review the original decision of a person/agency/organisation. There is a 3 month time limit to bring it to a judge.

What does ultra vires mean?

To go beyond your power

What is procedural ultra vires?

When an EA has set out a specific procedure that must be followed before DL can be passed. However, if this has not been followed correctly a challenge can be made in court.

What is the case for PUV?

The Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushrooms LTD 1972 - the D was responsible for ensuring health and safety training was being provided, the TB wanted to enforce specific training for workers but AM LTD argued that they didn’t have to due to the lack of proper consultation (The court ruled in favour of AM LTD)

What is SUV?

Specifically addresses cases where a decision or action taken by an authority is outside the scope of the powers given to it from the EA, making the DL void.

What is the case for SUV?

R (Ann Summers Ltd) v Job Centre Plus 2005 - Ann Summers is a retailer known for underwear, they sought to advertise jobs and went to the job centre. The job centre refused to advertise these roles, AS argued that JC had acted beyond their powers and the court agreed.

What is Wednesbury Unreasonableness?

A term used to describe an administrative decision that is so unreasonable that the courts decide that no sensible person could have reached the decision. Courts will declare DL void when the laws made under the EA are deemed unreasonable

What is the case for WU?

Associated Provisional Picture Houses Ltd v Wednesbury Corporation 1948

What are the advantages of delegated legislation?

-Flexibility

-Parliamentary scrutiny through EAs, ARP and NRP

-Delegation of powers - ministers can add details to laws

-Time saving

-Expertise

-Emergency

What are the disadvantages of delegated legislation?

-undemocratic

-sub-delegation - ministers will often delegate to civil servants and will not check the DL made

-Parliament controls - ineffective: NRP

-Scrutiny

-Knowledge - general public don’t know

-Complex working - difficult for lawyers to interpret