• Revision:Aqa as law - delegated legislation

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Delegated Legislation

Parliament passes authority to other bodies to create laws.


Contents

Types of Delegated Legislation

Statutory Instruments (SIs)

  • Created by government ministers
  • Add detail to the parent Act


Road Traffic Act 1972

  • All motorcyclists must wear helmets; it is left to Minister of Transport *however to legislate on the details such as what type of helmet


Road Vehicle Regulations 2003

  • Mobile phones cannot be used while driving


Bylaws

  • Local authorities make laws for a local area.
  • May also be made by some public corporations, eg London Underground

eg, no drinking alcohol on the streets of Bury.

eg, littering fines

Orders in Council

  • Made by the Queen and Privy Council
  • In times of emergency
  • Most frequently where SIs would be inappropriate

Eg Foot and Mouth crisis, 2001

UN Sanctions Order 1990

  • Imposed (food) sanctions on Iraq, upon invasion of Iraq


Reasons for Delegated Legislation (Advantages)

  • Relieves pressure on Parliamentary time
    • The ‘Commons can concentrate on important laws, rather than technicalities
  • Speed
    • Contrast to average 9 months for Parliamentary statute
    • Food Protection Order 1986- 2 hours
  • Technicalities/expertise
    • Ministers will have expert knowledge of their department
  • Local knowledge
    • Law made by local authorities
  • Flexibility
    • Can be made at any time, as opposed to Acts that must be timetabled
  • Future needs
    • May not be catered for by statute, but can be easily altered through DL if needed


Control of Delegated Legislation

Power may be misused- bodies must be prevented making unsuitable DL

General control methods

  1. Consultation
    The creators consult experts in the relevant field; for example, a SI on road traffic law may be referred to the AA. The enabling Act may make such consultation compulsory.
  2. Publication
    All DL is published, therefore is available for public scrutiny


Parliamentary control

Parliament, through the doctrine of parliamentary sovereignty, may revoke any piece of DL.

Affirmative Resolution Procedure

  • May require that all DL under a particular Act is approved by a motion in both Houses of Parliament, with a debate and vote.
  • Must be passed within 40 days.
  • Rare, and only for parent Acts of importance

Negative Resolution Procedure

  • New DL displayed in Parliament
  • Will become law unless any MP objects within 40 days.

Parliamentary Committees

Committees from both Houses to scrutinise Parliamentary legislation

  • Scrutiny Committee: reviews SIs
  • Delegated Powers Committee: watchdog for all DL


Judicial control

Delegated legislation may be challenged in the courts

If a piece of DL goes beyond the powers granted to it by Parliament in the relevant statute, it can be deemed “ultra vires” and therefore void.

There are two types of 'Ultra Vires'.

Procedural Ultra Vires: When a piece of delegated legislation is deemed to have not followed the correct procedure which was required by the enabling act. (Aylesbury Mushroom Case 1972)

Substantive Ultra Vires: 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. (Strickland V Hayes BC)

A piece of DL can be challenged by anyone who believes that they have been adversely affected by it. They will apply to the High Court for Judicial Review.

The court will ask:

a) Did the maker of the DL exceed the powers given in the parent Act?

Bulger case 1996

  • Home Secretary Michael Howard intervenes to increase minimum sentence of 2 murderers from 8 to 15 years; this was ultra vires.

R v Wood 1855

  • Minister for Health created an SI that would force all people to clear snow off their own paths, on the pretext that it was an “unhygienic substance”

b) Is the DL irrational or unreasonable?

Strickland v Hayes BC

  • A bylaw would prohibit obscene songs/language in any place, including in private. Held to be unreasonable.

c) Has there been a defect in the procedure by which the DL was made?

Aylesbury Mushroom Case 1972

  • The minister did not consult the Mushroom Growers’ Association when the enabling act required them to.

Evaluation of control methods

  • Consultation - adds a democratic element to the process
  • Publication - available for public scrutiny
  • Affirmative Resolution - again democratic, both Houses
  • “Irrational/Unreasonable” - cannot make unreasonable demands

However, control methods may not be effective:

Air Navigation Order 1995 - had to be replaced within 3 months due to defects and errors


Criticisms of Delegated Legislation

Taken from Phil Harris, “An Introduction to Law”

  • Takes legislation away from elected bodies
    (except in the case of local authorities)
  • Some DL causes a minister to have actual legislative power
    European Communities Act 1972- gives ministers power to make provisions which implement EU policies
    CLSA 1990- LC has power to amend/repeal laws on provision of legal services
  • Sub-delegation
    Much law made by civil servants, merely rubber-stamped by ministers
  • Made largely in private- lack of publicity
  • Like statute, can suffer from obscure/difficult wording
  • Insufficient control
    Public are frequently unaware of how to challenge it
    Air Navigation Order 1995
  • Some enabling Acts give wide powers to Ministers
    Hard to prove them acting ultra vires
  • Rarely possible to prevent DL being passed
    Because of the Parliamentary procedures involved.


Comments

  • Suitable for: AS Level Law, AQA Board
  • Written by: Johnny 5
  • From this post.
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