DELEGATED LEGISLATION

TYPES
1. STATUTORY INSTRUMENTS
  1. Two types:
    1. Negative Instruments: become law without debate or vote, but can be opposed by a member of either house
    2. Affirmative Instruments: Parliament must expressively approve
    3. Parliament can accept or reject instruments but cannot amend them
  2. Evaluative Points:
    1. Most acts including provisions that delegate powers to government ministers, most del leg takes the form of SIs
    2. Reduces pressure of Parliamentary time and allows minister to regulate administrative details
    3. Statutory Instruments are usually drafted by the legal department of the ministry concerned, and may consult interested parties
    4. There were 3,699 in 2005 - increasing yearly.
    5. The parent act sometimes provide for some direct parliamentary control of delegated legislation
    6. Parliament can consider whether an SI is made in accordance with the powers that it is delegated
    7. Must be printed and sold
      1. THE STATUTORY INSTRUMENTS ACT 1946
        Requires statutory instruments to be printed and sold as soon as possible unless they are local, temporary, or sensitive and not yet in operation, and printing would not be expedient.
  3. ROAD TRAFFIC ACT 1972
    1. All motorcyclists must wear helmets; left to the transport minister
  4. "Power delegated to a specific government minister"
2. ORDERS IN COUNCIL
  1. The Queen & The Privy Council
  2. In times of emergency
  3. Who makes orders in council?
    1. Made and drafted by government ministers
    2. Formally passed by the Monarch and the Privy Council
    3. Used as an alternative for other legislative forms, e.g: times of emergency
    4. Ultimately made by the Queen and her Privy Council
    5. The cabinet is a committee of the Privy Council so all cabinet ministers, current and past are Privy Councillors.
  4. FOOT AND MOUTH CRISIS 2001
  5. Council Meetings
    1. Lord President of the council reads out a list of orders-in-council to which the Queen replies with 'Agreed' which validates the order
    2. Meetings are over in a few minutes
    3. Usually only a handful of Privy Councillors present
  6. Can be made when Parliament is not sitting
  7. Can be made by ministers to have an immediate effect and then approved by the Privy Council later
3. BY LAWS
  1. Locally made and have local effect
  2. Made by local authorities and public bodies (universities, railway companies etc)
  3. Made in response to local problems, e.g. parking
  4. Procedure for starting local by-laws is started by the local authority and confirmed by the office of the Deputy PM
  5. e.g. Littering fines
ADVANTAGES
1. Relieves pressure on Parliamentary time
  1. Commons can focus on important laws, rather than technicalities
2. Speed
  1. Usually takes around nine months to pass a bill
    1. Food Protection Order - Two hours
3. Technicalities/Expertise
  1. Ministers have expert knowledge of their department
4. Local knowedge
  1. Law made by local authorities
5. Flexibility
  1. As opposed to acts that have to be timetabled
6. Future needs
  1. Can be easily altered by delegated legislation if need be
CONTROLS
1. General control methods
  1. Consultation
    1. Consults experts in the relevant field
      1. SI on road traffic law may be referred to the AA
      2. Enabling act may make consultation compulsory
  2. Publication
    1. All delegated legislation is published
      1. Open to public scruitiny
2. Parliamentary Control
  1. Affirmative resolution procedure
    1. May require that all DL under a particular Act is approved by a motion in both Houses of Parliament, with a debate and vote.
    2. Must be passed within 40 days
    3. Rare, and only for parent acts of importance
  2. Negative resolution procedure
    1. New DL displayed in Parliament
    2. Will become law unless an MP objects within 40 days
  3. Parliamentary committees
    1. Scrutiny Committee reviews SIs
    2. Delegated powers committee; watchdog for all DL
3. Judicial Contols
  1. Ultra Vires: going beyond the power delegated to them
  2. Procedural ultra vires
    1. When a piece of DL does not follow the procedure laid down in the enabling act
      1. AYLESBURY MUSHROOM CASE 1972
  3. Substantive ultra vires
    1. When a piece of delegated legislation is deemed to be void because it places provisions on an area over which the enabling act did not give them the power to.
  4. Substantive ultra vires - Wednesday unreasonableness
    1. f it is unreasonable or unworkable
4. Evalutation
  1. Consultation
    1. Adds a democratic element
  2. Publication
    1. Available for public scutiny
  3. Affirmative resolution
    1. Democratic - both houses
  4. Irrational/unreasonable
    1. Cannot make unreasonable demands
DISADVANTAGES
1. takes legislation away from elected bodies
2. Some DL causes ministers to have actual legislative power
  1. EUROPEAN COMMUNITIES ACT 1972
    1. Gives ministers power to make provisions which implement EU policies
3. Sub-delegation
  1. Law made by civil servants, merely rubber stamped by ministers
4. Made in private
  1. lacks publicity
5. Can suffer from difficult wording
6. Insufficient control
  1. Public are unaware of how to challenge it
7. Some enabling acts give too much power to ministers
8. Rarely possible to prevent DL being passed
  1. Because of the parliamentary procedures involved

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DELEGATED LEGISLATION

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	Created by hollie.manning96 almost 11 years ago