Delegated Legislation

made by people other than parliment who have been given permission to do so by parliment

parliment makes parent / enabling act which leaves framework and they fill in detail

three different types: byelaws, orders in council, and statutory instruments

byelaws

produced by local authorities eg. bury council and public companies eg. metrolink

eg. parent act allowing creation of byelaws is the clean neighbourhoods and environment act 

allows councils to create byelaws requiring people to pick up after their dogs

orders in council

created by queen and privvy council

used in emergencies when parliment isn't sitting, amend exisiting laws, dissolve parliment before election, introduce european directives 

eg. energy act 1976 (reserve powers) order 2000 allowed milatry vehicles to transport fuel to esential services during strike 2000

eg. order in council used in misuse of drugs act 1971 to reclassify cannabis as type b drug.

statutory instruments

made by goverment ministers (head / sos for that department)

eg. of parent act is road traffic act. states that a helmet must be worn when riding a motorcycle (framework) but leaves the type of helmet to the secretary of state for transport to decide (fill in details)

courts controlling delegated legislation is known as judicial review

anyone can challenge delegated legislation they believe is ultra vires (beyond power)

there are three ways it can be ultra vires: substansive, unreasonable and procedurally improper

substansive

this is when the individual is claiming the delegated authority has gone beyond the power they were granted in the parent act

eg. r v wood only allowed to fine for 'dung, filth and ash' but was fined for failing to clear up snow, this fining was ultra vires

procedural

individual is claiming the authority did not follow the procedure they were required to when creating the legislation

eg. aylesbury mushroom co not all interested parties were consulted as required therefore legislation is ultra vires

unreasonable

individual is claiming a reasonable public body would not have done this

eg. secretary of state for education v tameside borough council application for grammar school refused due to personal political views of government minister

human rights

it is also necessary public bodies do not make decisions which go against the european convention on human rights otherwise these will be subject to judicial review

eg. abu qatada claimed was being refues right to fair trial by being forced back to jordan

parent act

attempts to limit what can be produced

who can make law, limits on what they can make, any procedures need to follow eg. byelaw not law until authorized by relevant government minister

the legislative and regulatory reform act 2006

sets out procedure for making statutory instruments

negetive, affermative and super affermative procedure

negetive

most stautory instruments are subject to this

the statutory instrument will become law on a set date unless either house objects to this and calls for annulment

usually given 40 days before it will become law

affermative

this gives parliment much more strict control, but is only used around 10% of the time

both houses of parliment must approve the instrument before it becomes law

super affermative

this procedure offers much more control that the other two

committees in parliment have 60 days to reiew the instrument and reccomend changes 

once these changes are complete it goes through the normal affermative resolution procedure

committee supervision

joint select committee on statutory instruments - reviews all instruments and refers back to parliment if defective

delegated powers scrunity committee- checks all bills which propose to allow others to create delegated legislation can refer innapropriate proposals back to house of lords.

local knowledge

local authorities can make byelaws suitable for the local area much more easily than parliment, as they are aware of local issues

eg. bury does not need byelwas covering seaside behaviour, but does need no alchohol policies, whereas a rural area of the lake district would not

specalist knowledge

parliment can delegate law making power to make use of technical expertise 

eg. air navigation order 1995 contained many pages of highly technical rules with regards to flying civil aircraft around the uk. unlikely that any members of parliment would have the specialist knowledge to understand this, and therefore it makes much more sense to delegate this to someone who does.

saving parlimentary time

more minor issues can be delegated to ensure parliment has the most time to focus on the most important issues

eg. local government pension scheme regulations 1995 contained many very detailed pages on non-contraversial issues that would be a waste of time for parliment to discuss. therefore makes more sense to delegate this to someone else in order for parliment to spend their time on bigger issues.

rapid action

delegated legislation can be produced much faster than ordinary legislation, meaning emergencies can be adressed rapidly

eg. food protection (emergency provisions) order 1986 put into effect in less than two hours to prevent slaughter and movement of sheep in areas thought to be affected by radioactive fallout from the chernobyl power station

undemocratic

takes law making away from the democratically elected house of commons and allows non-elected people to make law, with parliment only having minimal control over this

sub-delegation

law making is often handed down to another level

volume

over 3-4000 new statutory instruments made every year so many mps struggle to keep up with the sheer amount

also lack of publicity much of the delegated legislation is made in private without public opinion involved

abuse

may be used incorrectly as people may use their power to benefit themselves or a group