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Delegated Legislation - Coggle Diagram
Delegated Legislation
CONTROL BY PARLIAMENT
as Delegated legislation in many instances is made by non-elected bodies and since there's so many people with the power to make delegated legislation, it's important that there should be some control over it. Control is exercised by Parliament and by the courts.
Checks on the enabling Act: Parliament has the initial control over what powers are delegated as the enabling act sets out limits within which any delegated legislation must be made.
→ For example, the enabling states which government minister can make the regulations also stating the type of laws to be made and whether they could be made for the whole country or only for certain places.
The Act can also set out whether the government department must consult other people before making the regulations.
Parliament also retains control over the delegated legislation as it can repel the powers in the enabling act at any time.
→ put does this then the right to make legislation will cease. Parliamentary committees scrutinise delegated legislation to see if it has been made appropriately.
Examples:
→ Joint committee on Statutory instrument.
→ Secondary Legislation Scrutiny Committee in House of Lords.
Affirmative resolution: a small number of statutory instruments will be subject to an affirmative resolution, this means that the statutory instrument will not become law unless specifically approved by parliament.
The need for this permit resolution will be included in the enabling act.
→ for example, an affirmative resolution is required before new/revised police codes of practice under the police and criminal evidence act 1984 can come into force. A disadvantage of this procedure is that Parliament cannot amend the statutory instrument; it can only be approved annulled or withdrawn.
Negative resolutions: statutory instruments will be subject to a negative resolution, meaning that the relevant statutory instrument will become law unless rejected by Parliament within 40 days. The main problem with this procedure is that very few statutory instruments will be looked at. Available for parliamentary committees to scrutinise. making it likely that only a few will be looked at.
Super-affirmative resolution procedure: this procedure is available if delegated legislation has been made and the authority of legislative and regulatory reform act 2006, when Parliament has given greater control as the active ministers very wide powers to amend acts of Parliament questioning the government ministers. Individual ministers may also be questioned by MPs in the House of Commons on the work of the department.
→ can include questions about proposed or current delegated legislation.
Scrutiny committees: statutory instruments are usually called scrutiny committees. Review all statutory instruments and where it is necessary will draw attention of both houses of Parliament to point out there is a need for further consideration. The review is technical and not to based on policy.
the main grounds grounds for referring to statutory instrument back to the houses of Parliament are:
→ it imposes a tax or charge.
→ appears to have a retrospective effect, not provided for by the enabling act.
→ appears to have gone beyond the powers given and enabling legislation.
→ make some unusual/unexpected use of those powers.
→ unclear/defective in some way.
The committee can only report back its findings having no power to alter any statutory instrument. the main problems are the review is only technical one limited to the point set out above. Even if the committee discovers a breach of one of these points, they can only draw attention to Parliament about it.
Effectiveness of Parliament control: the sheer number of pieces of delegated legislation means that not all of them can be given proper scrutiny before they come into force. Piece of legislation once it has come into force. Legislation is made in a very technical way and they are scrutinising it will often not have sufficient knowledge or expertise in the relevant law to be able to assess whether it has been validly made. Committees can only make recommendations to Parliament.
STATUTORY INSTRUMENTS
Ministers and government departments are given authority to make regulations for areas under their particular responsibility. Each department deals with a different area of policy and can make rules and regulations in respect of the matter is it deals with. So the minister for work and pensions will be able to make regulations on work related matters.
Statutory instruments can be very short, covering one point such as making the annual change to minimum wage. Yet, they could be long with detailed regulations which were too complex to include in an act of parliament.
Statutory instrument- rules and regulations made by government ministers had to be a variety of an enabling act.
Examples that include a lot of detail:
→ Building Regulations 2010- there have 10 parts and 6 schedules. they have been amended a number of times by further regulations. Made under the authority of the European Union Act 1972 and Building Act 1984.
→Police Codes of Practice- Relation to powers as stop and search, arrest and detention. 8 codes. made by Minister for justice under powers in the police and Criminal Evidence Act 1984, updated time to time.
Statutory instruments are important way of making law is over 3,000 are made every year.
REASONING
Detailed law: in modern society the large number of rules and regulation, needed to make society work now safely and efficiently. Parliament does not have the time to deal with all the detail needed. Delegated legislation means a parliament has control, through the use of enabling acts of what regulations are passed.
Expert knowledge: needed in order to draw up the most effective laws. It is thought that is better for Parliament to be the main principal thoroughly, leaving detail to be filled in by those with expert knowledge of it.
Local knowledge: for by-laws, local councils know their own area, deciding which areas need drinking bans or what local parking regulations there should be. It's impossible for Parliament to deal with all the local requirements for every city, town and village in the country.
Consultation: important for roles on technical matters, it is necessary to make sure that the legislation is accurate and workable. Ministers can have the benefit of consultation before having regulations drawn up.
INTRODUCTION
parliament's authority to make delegated legislation is usually laid down in a 'parent' Act of Parliament known as an enabling Act. The enabling Act creates the framework of the law and then delegates power to others to make more detailed law in the area.
Delegated legislation - law made by some person or body other than Parliament, but with the authority of an Act of Parliament.
there are 3 different types of delegated legislation:
→ orders in council
→statutory instruments
→by-laws
ORDERS IN COUNCIL
The Queen and Privy council have the authority to make orders in Council. The privy council is made up of the prime minister and other leading members of the government. It allows the government to make laws without going through Parliament.
it can be made up on a wide ranger of matters, especially: → transferring responsibility between the government departments. - For example. when the Ministry of Justice was created the powers of the previous department of constitutional affairs and some of the powers of the Home Office were transferred to what was then a new ministry.
→ acts (or parts of acts) of Parliament into force.
→ giving legal effect to EU directives.
→ dealing with some aspects of foreign affairs.
→ making law in times of national emergency when Parliament is not sitting under the authority of civil contingency act 2004.
Orders in council can also be used to amend or update existing law:
→ for example in 2003 an order in council was used to alter the misuse of drugs act 1971 to make cannabis a class C drug. Five years later the government decided that it had been a mistake to downgrade cannabis.
There must be an enabling act allowing the privy council to make orders in Council on a particular topic.
CONTROL BY COURTS
Delegated legislation can be challenged in court by a person with sufficient standing or interest in the case. Which can be challenged by Judicial review on the ground that it is ultra vires. - meaning it goes beyond powers given by parliament in the enabling Act.
The controls:
- Ruled by the court to be ultra vires meaning its void and of no effect - an example is R v Home Secretary, ex party Fire Brigades Union [1995]
- It is ultra vires because the correct procedure has not been followed - An example is AylesBury Mushroom case [1972]
- It is ultra vires if it is unreasonable - An example is R (Rogers) v Swindon NHS Trust 2006
ultra vires - the delegated legislation has (1) Beyond the powers given to make it in the enabling act (2) made after the incorrect procedure has been used or (3) decision is made and reasonably.
If ultra vires is found the legislation, or decision, will be void end of no effect.
BY-LAWS
These can be made by local authorities to cover matters within their own area.
For example: a county council can pass laws affecting the whole county which a district or town council can only make by-laws for its district or town.
→ many local by-laws will involve traffic control such as parking restrictions, or whether dogs can be exercised on the beach.Other by-laws maybe for such matters is banning the drinking of alcohol in public places or banning people from riding bicycles in the local parks.
made by public corporation certain companies for matters within their own jurisdiction, which involve the public. This means that bodies such as the British airports authority and railway companies can impose rules about public behaviour on the premises.
ADVANTAGES/DISADVANTAGES
Advantages:
→ saves parliamentary time.
→ access to technical expertise.
→ allows consultation.
→ allows quick law making.
→ easy to amend.
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