Delegated legislation

What is delegated legislation?

Parliament delegates its power to other bodies through an enabling act eg police and criminal evidence act 1984

What's the need for DL

- parliament doesn't have time

- parliament lacks expertise ( ministers have no qualifications ) - allows mps to set broad principals

- DL can be made quick in emergency eg orders in council

- by laws enable more effective local representation

Types of DL

- orders in council

- statutory instruments

- by laws

Orders in council

- made by king and privy council

- being acts into force quickly

- misuse drugs act 1971 - change cannabis from class B to C

Statutory instruments

-rules and regulations made by gov ministers

- minister for work and pensions - make regulations on work related matters

- instruments are short eg minimum wage increase

By laws

- made by local authorities and public corporations

- made under local government act 1982 for local authorities

- eg railways act 1993 enables law to be made railways

Parliamentary controls

- parent act

- negative resolution

- affirmative resolution

- scrutiny committee

- delegated powers and regulatory reform committee

Parent act

Act that sets clear parameters eg which gov minister can make DL

Parliament can withdraw parent act at any time

Negative resolution

- SI laid before parliament for 40 days , if no prayer motions , become law automatically

Affirmative resolution

- SI doesn't become law unless specifically approved by parliament eg PACE 1984 sets this requirement for police codes of practise

- only be approved by parliament or withdrawn by minister

Scrutiny comitee

- joint committee of lords and commons

- only look at legislation once it's in force - only consider technical aspects

- refer things back to parliament if:

1) SI imposes a tax/charge

2) SI applies retrospectively which is nit provided for in the enabling act

3) SI gone beyond powers in enabling act

4) SI makes unusual or unexpected use of legitimate powers

5) unclear of defective

Delegated powers and regulatory reform committee

- HOL committee

- examines whether an enabling cat inappropriately delegated power

- provides a report to lords before committee stage in passage of enabling bill

Effectiveness of parliamentary controls

+ comitees check a number of SIs

+ DPRR examines bills before HOL - meaning enabling act is scrutinised

+ affirmative resolution means there will be a vote

+ members of houses can issue prayer notions - enable them to object to SIs

Ineffectiveness of parliamentary controls

- committees can't check all SIs

- committee reviews are technical and even if they find a breach they can only report to parliament

- time consuming - gov use whips to win

- most SIs use negative procedure - rarely challenged , no obligation to look at them. , so they just become law after 40 days

What is a judicial control

- person can make application for judicial review if they have locus standi

- JR heard by KBD in high court

- enabling acts can't be challenged by JR

- if court grants JR , DL can be declared void and quashed

- judicial review + courts act 2022 - enables judges to to suspend quashing orders to enable public body to comply

Types of judicial review

- procedural

- substantive

- unreasonableness

Procedural

- Procedure in enabling act was not followed

- Aylesbury mushroom - mushroom growers not consulted - procedural ultra vires

Substantive

DL goes beyond the powers given in enabling act

- r v Home Secretary ex parte fire brigades union - changes to criminal injuries compensation scheme were decided to go beyond the the delegated powers given in the criminal justice act 1988

Unreasonableness

Decision is so unreasonable no reasonable body would come to it

- associated picture houses v wednesbury corporations

- r v Swindon nhs trust - not providing patient treatment as she's not exceptional is unreasonable when others provided it

Effectiveness of judicial reviews

+ C requires standing to bring a case to judicial review

+ can gain legal aid in some circumstances

+ claim must be made in 3 months - allows time for crowd funding

Ineffectiveness of judicial review

- rule of law said all should have equality before law - anyone should be able to challenge

- reviews are against state / public bodies who have more funding and legal aid is limited

- unrealistic to expect cases to be funded in this time

Advantages of DL

+ time saving - doesn't require all parliamentary debates

+ clear policy focus - better for parliament to focus on broader policy reflecting public views eg road traffic act 1998. - makes motorcyclists need helmets

+ speed - food protection order 1986

+ expertise - ministers benefit from expert civil servants

+ flexible - easing amended without going to parliament

Disadvantages of DL

- sub delegation. - DL drafted by civil servants and approved by minister - civil servants not democratically accountable for any mistakes

- democratic deficiency - ministerial posts are not elected - appointed by prime minister from elected mps- so they don't have direct mandate from people - not directly accountable

- speed - hard to ascertain what the law is in certain situations

- poor drafting - poor wording - leads to long court disputes