Delegated Legislation

kieradobbin
Mind Map by kieradobbin, updated more than 1 year ago
kieradobbin
Created by kieradobbin about 4 years ago
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Mind Map on Delegated Legislation, created by kieradobbin on 04/04/2016.

Resource summary

Delegated Legislation
1 Parent/Enabling Act
1.1 Types
1.1.1 Orders in Council
1.1.1.1 Used in emergencies and when Parliament is not sitting (e.g. petrol crisis 2000). It is made up of the Queen and the Privy Council. It also incorporates European Law. It can also be used to make other types of law such as the Misuse of Drugs Act 1971.
1.1.1.1.1 E.g. Colonel Gadaffi's assets were frozen in 15 minutes (order made at 5pm and came into force at 5:15pm)
1.1.2 Statutory Instruments
1.1.2.1 Consists of Government ministers and their departments. Over 3000 are passed each year. They can be long or short.
1.1.2.1.1 E.g. The change to minimum wage
1.1.3 Byelaws
1.1.3.1 Made by local authorities to cover matters within their own areas (many involve traffic control/parking restrictions). They must be advertised for 1 month. Companies such as TFL can implement byelaws, such as 'no smoking on the underground'
1.1.3.1.1 Eg. No spitting/littering/dog fouling in the streets
2 The Legislative and Regulatory Reform Act 2006
2.1 It is used to change an Act of Parliament. It is done by a minister when there is a burden (financial cost/an administrative inconvenience/an obstacle to efficiency, productivity or profitabiity)
3 Why is it needed?
3.1 Parliament does not have the time. They look at the wider picture.
3.2 Parliament does not have the necessary expertise.
3.3 Acts of Parliament take a long time to be passed. It is an easier method to amend legislation.
3.4 Delegated legislation is much more flexible than primary legislation.
4 Control
4.1 By Parliament
4.1.1 Parliament has the initial control with the Enabling Act. It sets out the boundaries for which delegated legislation is to be made. Parliament can repeal or revoke the powers at any time. Parliament can even be required to vote its approval to an Enabling Act.
4.1.2 A Delegated Powers Scrutiny Committee considers whether the provisions of any Bills delegated legislative power inappropriately. It reports its findings to the House of Lords.
4.1.3 Some Statutory Instruments are subject to an Affirmative Resolution. It will not become law unless specifically approved by Parliament.
4.1.4 Most Statutory Instruments are subject to a Negative Resolution. It will become law unless rejected by Parliament within 40 days. [Most common form of control]
4.1.5 There is a Scrutiny Committee that reviews all Statutory Instruments and where necessary, draws the attention of both Houses of Parliament to points that need further consideration. [Tends to be on technical points. It is a more effective check]
4.1.6 The Legislative and Regulatory Reform Act 2006 - orders made under this power have to be laid before Parliament. The procedures are a negative resolution, an affirmative resolution and a super affirmative resolution.
4.2 By the courts
4.2.1 This control is exercised on the grounds that it can be ultra vires. The cases are heard in the Queens Bench Division and are subject to judicial review.
4.2.2 Ultra Vires = Void and ineffective.
4.2.2.1 Procedural ultra vires: the correct procedure has not been followed [mainly revolves around consultation]. E.g. Aylesbury Mushrooms - the minister did not consult the mushroom growers. Another example is Boris Johnson's Crossrail - he did not consult taxi drivers.
4.2.2.1.1 Substantive ultra vires; the minister has gone beyond the powers that Parliament granted in the Enabling Act. E.g. the proposed closure of Lewisham Hospital.
4.2.2.1.1.1 Unreasonableness: there is no provision to make unreasonable regulations. E.g. Strictland vs Hayes Borough Council - stated that it was unreasonable to prohibit the singing or reciting of any obscene song or ballad and the use of obscene language It included acts done on private property as well as those on public land..
5 A02 POINTS
5.1 Advantages
5.1.1 It's very quick
5.1.2 It allows Parliament to focus on larger issues.
5.1.3 It is made by appropriate people with technical knowledge.
5.2 Disadvantages
5.2.1 There is too much sub-delegation. It is sometimes made by civil servants.
5.2.2 The powers are too wide.
5.2.3 There is a lack of publicity.
5.2.4 It is undemocratic - obscure wording.
5.2.5 There is a large volume of delegated legislation.
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