ELS - P3 Contract

Delegated Legislation

Delegated Legislation

‘secondary’ legislation. Parliament writes a framework known as a Parent/Enabling Act and this allows selected people to write the finer details of the law for them.

Types of Delegated Legislation

(1)Orders in Council

(2)Statutory Instruments

(3) By-laws

Orders in Council

The main use is currently to give effect to European Directives, deal with emergencies due to power provided in the Parent Acts: Emergency Powers Act 1920 - Afghanistan Order 2001. Also, sometimes used for other reasons, such as transferring power between government departments.

Statutory Instruments

rules made by government ministers who are given power to make law for their particular area of responsibility, about 3,000 Statutory Instruments each year.

Education ministers who created rules about introducing the National Curriculum under powers from the Education Reform Act 1988.

By-laws

These are made by local councils, often under the Local Government Act 1972, and other public bodies. Local councils make laws for their area.

Case: Clean Neighbourhoods and Environment Act 2005.

Controls by Parliament

Parliament has control of DL prior to it being finalised.

Parent/Enabling Act

Parliament write the framework that gives power for someone to make law and sets out the manner in which it should be made.

Negative Resolutions

This procedure is followed for the majority of Statutory Instruments. The SI lies before Parliament for a period of 40 days and unless Parliament recognise a problem with the law during this time, the law automatically comes into effect after the 40 days have passed.

Affirmative Resolutions

A small number of Statutory Instruments must actually be approved by Parliament before they become law and will not become law until this has happened

Procedural ultra vires

if DL has been made without properly following required procedure specifically set out in the Parent Act, it can be found ultra vires and declared void.

For example, in Aylesbury Mushrooms, the Industrial Training Act 1964

Substantive ultra vires

If the responsible minister goes beyond the powers delegated to them in the parent Act, the DL or decision of the minister may be found ultra vires and declared void.

Reasons for Using Delegated Legislation

• Parliament do not have the necessary time to make all of the laws needed

• Parliament does not have the necessary expertise or local knowledge to make all of the laws that are needed.

• laws that affect local areas should be made by local people who understand the needs of that area.

• in an emergency Parliament may not be able to write laws quickly enough

The Institutions of the European Union

• The Commission;

• The Council of Ministers;

• The European Parliament; and

• The Court of Justice of the European Union.

The Commission

made up of 28 Commissioners approval by the European Parliament, for a five-year term

Their role is to be independent of national interests, and to promote the interests of the EU as a whole.

“guardian of the treaties”

The role of the Commission is to decides on policy and strategy, to propose legislation, and to ensure that Member States follow EU Law.

The Council of Ministers

• with the Parliament, as the main decision-making and law-making body of the EU

• president of the Council changes each six months and rotates between member states.

• The Council meets to discuss, amend and adopt laws (together with the European Parliament) proposed by the Commission, and to coordinate policies.

The European Parliament

• comprises 751 members known as MEPs, or Members of the European

• Parliament the UK provides 73 MEPs, each representing a geographical area

• supervise the Commission. It can veto appointments to the Commission, and even dismiss the Commission as a whole

Court of Justice of the European Union

• Based in Luxembourg, the CJEU has 28 judges, one from each member state, and for important cases a full court of 11 judges will sit at once.

• ensure that the law is observed by both the institutions of the EU and it

  member states.

• resolves legal disputes between national governments and EU institutions

• routine cases serve on a 6 year time

The CJEU has two main roles

In its judicial role, the CJEU hears two types of cases in order to resolve disputes over EU law. These are cases brought against member states, and those brought against European institutions (EC Commission v UK )

The CJEU’s supervisory role is aimed at ensuring consistency of application of EU law throughout the Union.

Sources of EU Law

The main sources of European law are treaties, regulations and directives.

directly applicable

This means that treaties and regulations automatically become part of the law in every member state without the need for legislation. As Lord Denning noted in Bulmer v Bollinger

Direct effect

the idea that individual rights created by EU law must be protected by domestic courts without any requirement to bring domestic legislation in to achieve this. In the UK, s2(1) of the European Communities Act 1972 gives this power to our courts.

Treaties

Treaty on European Union