Law paper two

Delegated legistlation

What is delegated legislation?

it is secondary legislation that is passed in a specific are by a secondary body to which parliament has passed its power to.

what is the act that allows delegated legislation?

the act that allows this is known as parent acts or enabling acts which is regarded as primary legislation. however any legislation made by this secondary body does have the same effect as law written by parliament.

a type of legislation that can be delegated is the orders in council.

the orders in council, secondary body can by the privy council.

the reason its used it due to the fact

• it saves parliament time

• there can be quick responses in emergency situations.

• for example the civil contingencies act 2004 gives the privy council power to make law in times of emergency when parliament is not sitting.

statutory instruments SIs also known as ministerial regulations

this secondary body is the government minsters.

its used as over 3000SIs are made each year parliament would not be able to cope with the volume of the complexity its left for the expertise areas.

• example building regulations 2010 are incredibly complex, made by the department for communities and local gov under the building act 1984.

• police powers are made by the ministry for justice under the police and criminal evidence act 1984.

by laws

this secondary body is the local authorities and public corporations within their jurisdiction.

the reason is because parliament does not have the time nor the local knowledge to deal with these types of matter.

• example the drinking ban zone is a designated public place order. it was put in place by local councils under the criminal justice act and police act 2001.

controls by parliament can be parent act

parliaments first attempt to control delegated legislation made in its name comes with the drafting parent act. this should be clear unambigiuous and give what and how instructions that are open to very little interpretation.

affirmation resolution order NRO parliament control

in controversial areas such as human embryology parliament can insist that the draft delegated legislation is subject to parlimentary scrutiny and vote before coming into force, by including a requirement for affirmative resolution order in the parent act.

negative resolution order NRO parliament control

is designed to save parliament time, but AROs can defeat this object and could not possibly be used for all 3000 SIs each year.

in the absence of an ARO parliament has 40 days to pass a NRO to prevent an SI coming into force. if parliament misses this deadline only primary legislation or repealing the parent act can remove the delegated legislation.

delegated powers scrutiny committee in house of lords parliamentary control

considers whether the provisions of any bills going through parliament delegate legislative power inappropiately, it reports findings to hols before the committee stage of bill but it has no power to ammend bills.

joint scrutiny committee parliament control

its role is just to scrutinize SIs. it is looking for SIs that are retrospective in effect, badly worded or attempting to impose taxation.

controls by the courts. ultra vires meaning

a latin term meaning beyond the powers, the secondary body has exceeded the powers given to it by the parent act.

controls by the courts, can be procedural ultra vires and substantive ultra vires.

procedural uv - the secondary body has exceeded its powers and failed to follow the procedural instructions in the parent act. an example being the agricultural training board v aylesbury mushrooms ltd 1972.

substantive uv - the secondary body has gone beyond the powers granted to it and made more regulations than permitted. such as r v secretary for health ex parte pfizer ltd 1999.

what can judicial review do?

it can conclude a piece of delegated legislation is without legal effect as it is ‘outrageous in its defiance of logic.’ this is known aa wednsbury unreasonableness. in the case of associated provincial picture house ltd wednesbury corporation 1948.

effectiveness of parent act

usually very effective, but parliament is not foolproof when it comes to making new laws. For example the police and criminal evidence act 1984 gives the ministry of justice powers to alter police powers.

effectiveness of affirmative resolution order

this could not be used 3000 times a year and so is very restricted to highly controversial areas. an affirmative resolution is required before new or revised police codes of practice under the police and criminal evidence act 1984 can come into force.