Delegated legislation OCR A-Level LAW

Primary legislation

Laws made by Parliament (Acts of Parliament)

Secondary legislation

Laws made by a person or body other than Parliament under powers given by an enabling Act

Legislative and Regulatory Reform Act 2006

Allows ministers to amend Acts using statutory instruments if it removes inconvenience or makes law quicker or cheaper

Ministers making SIs under 2006 Act

Ministers can make statutory instruments even if the enabling Act does not explicitly allow it

Statutory instruments (definition)

Amendments to laws made by government ministers under authority delegated by an enabling Act

Statutory instruments (volume)

Around 3000+ are made each year

Bylaws (definition)

Laws made by local authorities or public bodies affecting a specific area or organisation

Bylaws (example)

Dog fouling fines in a public park

Orders in Council (definition)

Laws made by the monarch and Privy Council

Orders in Council (use)

Used in emergencies or when Parliament is not sitting

Orders in Council (example)

Anti-terrorism, Crime and Security Act 2001

Negative resolution procedure (definition)

Statutory instruments become law unless rejected by Parliament within 40 days

Negative resolution procedure (criticism)

Many are not examined due to large volume of SIs

Affirmative resolution procedure (definition)

Statutory instruments must be actively approved by both Houses before becoming law

Affirmative resolution procedure (limitation)

Cannot be amended

Super affirmative resolution (definition)

Draft SIs are reviewed by Parliament and public for 60 days before approval by both houses.

Super affirmative resolution after listening to reccomendations

Minister must respond to recommendations and explain changes or refusal to change

Super affirmative resolution (example)

Public Bodies Act 2011

Consultation (definition)

Process where relevant groups are asked for their views before DL is made

Consultation (purpose)

Ensures informed decision-making before laws are made

Publication (definition)

Requirement to publish proposed delegated legislation before it comes into force

Publication (purpose)

Allows scrutiny and awareness before enforcement

Scrutiny committees (definition)

Parliamentary committees that review delegated legislation and report concerns

Scrutiny committees (limitation)

Cannot amend delegated legislation and look at DL after it’s gone through

Delegated Powers Scrutiny Committee (definition)

Committee that checks whether delegation of powers is appropriate

Joint Committee on Statutory Instruments (definition)

Checks whether statutory instruments are legally correct

Merits Committee (definition)

House of Lords committee that considers whether SIs should have been made

Ultra vires (definition)

When delegated legislation goes beyond powers given by the enabling Act

Procedural ultra vires (definition)

When required procedure is not followed when making delegated legislation

Procedural ultra vires (case)

Aylesbury Mushrooms case

Aylesbury Mushrooms case (principle)

Failure to consult made the delegated legislation invalid

Substantive ultra vires (definition)

When delegated legislation goes beyond powers granted by enabling Act

Substantive ultra vires (case)

Ann summers 2003

Substantive ultra vires (principle)

Authority acted beyond its legal powers

Wednesbury unreasonableness (definition)

A decision/law is unlawful if no reasonable authority would make it

Wednesbury unreasonableness (case)

Associated Provincial Picture Houses v Wednesbury Corporation (Just say in the case of Wednesbury)

Locus standi (definition)

Legal standing or right to bring a case to court

Judicial review on DL (definition)

Court procedure where judges review legality of delegated legislation

Judicial review on DL (court)

High Court (King’s Bench Division)

Judicial review (limitation)

Only available to those with locus standi and person must have knowledge/money

Kruse v Johnson (principle)

Bylaws must be reasonable to be valid

Kruse v Johnson (case outcome)

Bylaw was not unjust of no singing within 50 yards of house.

Advantages of delegated legislation

The 4 bold are the ones to remember

1. Local knowledge 

2. Saves parliamentary time 

3. Flexible, easy and quick to amend laws because it doesn't have to go through parliament 

4. Enabling Act sets out clear guidance for bodies to follow 

5. Scrutiny committees can point out areas that need further consideration 

6. Balanced controls, not too centralised, not too spread out 

7. Parliament remains sovereign so can remove DL at any time 

Disadvantages of delegated legislation

1. Parliamentary control is reduced making the laws undemocratic. Too easy for ministers to amend a law without enough checks due to the Legislative and Regulatory Reform Act 2006. 

2. Normal people won’t take DL to court because of money and lack of knowledge 

3. 3000s SIs made a year, undemocratic, lack of debate. 

4. Unexperienced people perhaps