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Chapter 4: Law making: Delegated legisation (4.3 The reasons for the use…
Chapter 4: Law making: Delegated legisation
4.1 Types of delegated legislation
Delegated Legislation - law made by some person or body other than parliament, but with the authority of parliament.
Orders in council
the queen and the privy council have the authority to make orders of the council
Example:
The Misuse of Drugs Act 1971 (Amendment) Order 2008
used for many matters such as; transferring responsibility between government departments, bringing in new acts into force.
the privy council have the power to make emergency laws under the civil contingencies act 2004.
Statutory Instruments
Rules and regulations made by government ministers
Examples:
Codes of Practise under PACE
Building Regulations 2010
very short such as changing the minimum wage, however others can be really long with complicated regulations which are too complex to include in acts of parliament
3000 are made a year
4.1.3 By-laws
Made by local authorities or public corporations.
Examples:
Local parking regulations
People such as the British Airports Authority and the railways can inforce rules about public behaviour on their premises.
4.2 Control of Delegated Legislation
4.2.1 Control by Parliament
Enabling act - parliament has initial control over what powers are delegated as the enabling act. This states what type of laws can be made and by whom.
There are checks made on the delegated legislation which are;
Affirmative solutions - this is when a statutory instrument will not be made law unless it is specifically approved by parliament. However the disadvantage to this is that the law cannot be amended it can only be approved, annulled or withdrawn.
Negative solutions - this means the relative statutory instrument will be law if not rejected by parliament in 40 days, the problem with this is that not many MPs will look at the statutory instruments which could cause some bad laws but this also allows them time to consider the law and have full discussions.
Questioning of government ministers
Individual ministers will be questioned about the work of their departments and this can include questions about proposed regulations.
Scrutiny committee.
4.2.2 The Legislative and Regulatory Reform Act 2006
This act sets procedure for the making of statutory instruments which are aimed at repealing an existing law in order to remove a 'burden'. These consist of: a financial cost, an administrative inconvenience etc..
There are three possible procedures:
Negative resolution procedure - it will be used if the minister thinks it should and it will be used unless within thirty days one of the houses of parliament object to this. If this procedure is adopted then it will not become law until its been before parliament for 40 days.
Affirmative resolution procedure - this requires both houses of parliament to approve this order.
Super-affirmative resolution procedure - under this the minister must have regard to: any representations, any resolutions of wither the house of parliament, any recommendations by a committee of either house of parliament who are asked to report on the draft order.
4.2.3 Control by the courts
Delegated legislation can be challenged in court by
ultra vires.
It goes beyond the powers that parliament granted in the enabling Act. Where ant delegated legislation is ultra vires, then it is not valid law.
There is no power to do the following:
Make unreasonable regulations -
Strickland v Hayes Borough Council 1896
this prohibited singing and obscene language, this was held to be ultra vires.
Levy taxes
Allow sub-delegation
4.3 The reasons for the use of delegated legislation
4.3.1 Need for detailed law
In modern society there at needs for a large number of rules and regulations, and these are needed for society to work safely and efficiently. Parliament doesn't have the time for the amount of detail needed and using delegated legislation they have control.
4.3.2 Need for expert knowledge
Many regulations need expert knowledge of the subject matter in able to draw up the most effective laws. It is impossible for parliament to have all the knowledge needed.
4.3.3 Need for local knowledge
For local by-laws the local councils know their own areas and can decide which areas need drinking bans and what the parking regulations can be. It would be impossible for parliament to deal with all local requirements.
4.3.4 Need for consultation
Consultation is needed for rules on technical matters, so it makes it possible that every regulation will be technically accurate.
4.4 Advantages and disadvantages of delegated legislation
4.4.1 Advantages
Saves parliament time
Parliament doesn't have time to consider and debate every detail of a complex law.
Access to technical expertise
It is impossible for members of parliament to have all the knowledge needed to draw up complicated laws.
Allows consultation
Ministers can have the benefit of further consultation before regulations are drawn up, important for matters that are rather technical.
Allows quick law making
Law making can take a considerable amount of time, and in the case of an emergency parliament may not be able to pass the law quick enough.
Easy to amend
These can be amended or revoked easily when necessary so that the law is up to date.
4.4.2 Disadvantages
Undemocratic
They have not been elected to make the law.
Sub-Delegation
This means that law making and the power that goes with it is handed down, very likely to be rubber stamped which in the end means that it is invisible and no one can be held accountable.
Large volume and lack of publicity
The public doesn't know what is going on because it is private whereas parliament have public debates.
Difficult wording
There can be obscure wording which can lead in a difficulty of understanding the law, it isn't drafted by lawyers .