Law- delegated legislation

What is delegated legislation?

giving away power to pass laws to other people

What is Westminster ?

supreme law maker

What does parliament passing an enabling act do?

creates framework of law and delegates power to others to make more detailed law in the area

Why do we need delegated legislation?

parliament dont have time to consider every law, interest of knowledge, further consultation on laws (better laws), quicker in time of emergency, more local laws made, adapted more freely (keep up to date)

What are the three delegated legislations?

orders in council, by-laws, statutory instruments

What happens in orders in council?

king meets with the privy council (made up of former and current member of HOC and HOL)

What does orders in council allow gov to do?

make legislation without having to go through parliament, not debated or voted on.

What act can make new laws created in times of emergencies?

Emergency power act 1920 and cicil contingencies act 2004

What bill was made under orders in council?

2003 altered misuse of drugs act 1971

What happens in a statutory instrument?

rules and regulations made by gov ministers

Who can make statutory instruments ?

secretary of states for each department can make them related to their departments

Are statutory instruments long or short?

both short like minimum wage and long as civil service make detailed regulations.

What bill was made through statutory instrument ?

polices code of practice

statutory instrument - what happens in certain circumstances?

some require parliamentary vote

What happens in by-laws?

made by local authorities and public corportations to cover matters within their own area

what are by laws usualy made under?

local gov act 1982

What are the parliamentary controls?

enabling act, scrutiny by committees, delegated powers and regularity reform committee

What does an enabling act do?

set clear parameters and types of delegated law

what can gov do to the enabling act?

repeal it

What are two things the enabling act can specify?

negative resolution and affirmitive resolution

Whats negative resolution?

statutory instruments will become law unless rejected by parliament within 40 days of publication

What is affirmative resolution ?

statutory instrument won’t become law unless approved by parliament.

Affirmitave resolution- what can laws be ?

approved, anulled or withdrawn

What are scrutiny committees ?

joint committee on statutory instruments HOC and secondary legislation scrutiny committee HOL

What can scrutiny committee’s do?

check legislation once its in force. Can only consider technical aspects and draw attention of parliament that need further consideration.

What are the main grounds that scrutiny committees can refer something back to?

imposes tax/charge, applies retrospectively which was not provided in enabling act, goes beyond power of enabling act, unclear of defective in a way.

which house is the DPRR in?

lords

What does the DPRR do?

examine whether an enabling act delegates power

What is provided for eavh bill?

memorandum

What does a memorandum do?

identify each of delegations its purpose

What are the DPRR concerned with?

delegation and whether its appropriate and enough parliamentary oversight for any powers delegated to others

What are the DPRR’s recomendations made into?

reports to HOL before committee stage in passing of enabling act

What is the effectiveness of parliamentary controls ?

committees can check number of statutory instruments, DPRR examine bills, affirmitive resolution - vote, prayer motion- object to statutory instruments

How are parliamentary controls ineffective?

many statutory instruments go unchecked, committtee’s can’t change a law and parliament can ignore them, affirmative resolution is time consuming and whips, negative resolution means its rarely challenged as mp’s not aware of them.

What can’t judges do?

asses parent acts

where do all judicial reviews start?

kings bench division of high court

What does somone need to make a judicial review?

locus standi

What is locus standi?

means they have standing and are affected by the delegated legislation challenged on the grounds its ultra vires

If courts grant the judicial review it can be what?

declared void or quashed

What does the judicial review and courts act 2022 do?

enables judges to suspend quashing orders to enable their public body to comply

What are the three types of judicial review?

procedural, substantial and unreasonableness

What is procedural review ?

correct procedure set out by enabling act not been followed

What case is related to procedural review?

Alesbury mushrrom case 1972- enabling act said minister had to speak to affected organisations and he didnt

What is substantive review ?

rule making body has no substantive power under enabling act to make the rules in question or the body went beyond power given to them

What is the law relating to substantive review ?

R v Home secretary ex parte fire brigades union (1995)- home secretary made changes to criminal injuries compensation scheme

What is unreasonableness ?

decision is so unreasonable that no reasonable person would come to it

what case was unreasonableness set out in?

associated pictures house vs Wednesbury corporation 1948

What case relates to unreasonableness?

Rogers v NHS trust 2006 - denying someone cancer treatment as case deemed not special enough

How is judicial control effective ?

person requires standing, can have legal aid, claims within 3 months

What is ineffective about judicial control ?

rule of law, against state and public body , unrealistic to be aided in 3 months, courts can’t do anything about wide Henry VIII clauses

What are the advantages of delegated legislation ?

time saving, clear policy focus, speed, expertise, flexibility, controls

What are the disadvantages of delegated legislation?

sub-delegation (civil servants not accountable for their mistakes ), democratic deficiency, parliamentary oversight (don’t have direct mandate ), speed, poor drafting