Delegated Legislation - OCR A Level Law

What is delegated legislation?

A law made by someone other then parliament, but with the authority of an act of parliament it is sometimes referred to as secondary legislation.

Types of delegated legislation

- Orders in council

- By-laws

- Statutory instruments

Why would parliament pass on the responsibility

- Local needs

- Cost and time management

- Specialist knowledge

Act that gives the authority to create law

Found in the enabling act

How many orders in counsel are made

300-400 per year

Who makes orders in Council

The privy council and queen

When are order in council used

- In emergencies

- To transfer responsibilities between govt dept

- Bring statutes into force

- Make law in times of emergency, when parliament is not sitting

Example of Orders in council

Misuse` of Drugs Act 1971

Police and Criminal Evidence act

Who makes by laws?

Local authorities or large bodies authorised to do so

Who do by-laws apply to

Those who are using/at that local place

Example of by laws

The local government act 1972

The smoking ban on the London underground

How many by-laws are made a year

Several thousand

Who makes statutory instruments?

Government departments and ministers

How many statutory instruments are made each year?

3000

Who do statutory instruments apply to

They apply nationally, but can only be made for the area of responsibility

What can statutory instruments do?

- Can implement an act of parliament

- Can update an act of parliament

- Can provide detail for an act of parliament

Examples of statutory instuments

Health and safety act.

Foot and mouth despise (2001).

Mining regulations (2014).

How many acts do parliament make a year

25 acts

Reasons for delegated legislation

- Time

- Expertise

- Detail

- Local knowledge

- Consultation

Parliamentary controls

- Enabling act

- Negative resolutions

- Affirmative resolutions

- Questioning the government ministers

- Scrutiny committee

- Consultation

- Publication

Enabling act

Sets out the limits within which any delegated legislation must be made. Specifies what minister needs to make the legislation, who they need to consult etc.

Negative resolutions

The relevant statutory instrument will be law unless rejected by parliament within 40 days

Affirmative resolutions

Statutory instruments can not become law without specifically approved by parliament.

How do you know which resolution to use

The enabling act sets out which resolution it will be

Questioning of Government Ministers

They may be questioned on the work of there department

Scrutiny Committee

ONLY APPLY to statutory instruments

Checks technical stuff.

Reviews the statutory instruments and draws attention to what needs more consideration then REFERS BACK TO PARLIAMENT.

They can refer it back for certain reasons but they are UNABLE TO AMEND statutory instruments.

Reasons the scrutiny committee may refer a statutory instrument back to parliment

- It imposes tax or charge

- Has a retrospective effect which was not provided for.

- It has gone beyond the powers given

- Unusual or unexpected use of power

- Unclear or defective

Consultation

Experts are consulted within the relevant field. For example the police may be asked for advice before creating motoring rules

Publication

All delegated legislation must be published to be available for public scrutiny. E.g. tennis racket on plane case

Control by the courts

Judicial review;

The validity of a parent act cannot be challenged but the legislation that has been delegated can be challenged if the procedure has not been followed or that a body has exceeded the powers granted to them.

Acted ultra vires

What is meant by ultra vires

To go beyond the power or authority granted

Two types of ultra vires

- Procedural ultra vires

- Substantive ultra vires

Procedural ultra vires

The correct procedure has not been followed

Substantive Ultra Vires

The body has gone beyond the powers granted

Procedural Ultra Vires Case

Agricultural Training Board v Aylesbury Mushrooms (1972)

(didn't consult the mushroom growers)

Substantive Ultra Vires Case

AG v Fulham Corp (1921)

(Baths and wash-house Acts, imposed charges for the poor)