Delegated law making

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  • Delegated law making
    • orders in council
      • privy council made up of prime minister and other leading members of the government
      • make legislation without parliament
      • wide range of matters
        • transferring responsibility between government departments
        • bringing acts into force
        • making laws in time of national emergency
      • can amend or update existing law (misuse of drugs act 1971)
      • must be an enabling act allowing them to make order on particular topic.
    • statutory intruments
      • ministers and government departments given authority to make regulations for areas under their responsibility.
      • 15 departments dealing with different areas.
        • minister for work and pensions will make work-related regulations.
      • can be very short covering one point or long with detailed regulations too complex to include in one act.
      • police codes of practice in relation to stop and search, arrest and detention
    • by laws
      • made by local authorities covering matters within their own area.
      • can also be made by public corporations and certain companies for matters within their own jurisdiction
    • control of delegated legistlation
      • parliamentary control
        • checks on enabling act
          • initial control over powers delegated
            • can also repeal powers
          • whether consultation must occur
        • affirmative resolutions
          • will not become law unless specifically approved by parliament.
          • cannot ammend statutory instruments can only approve, annul or withdraw.
        • negative resolutions
          • many instruments wont be looked at
          • relevant statutory instrument will become law unless rejected by parliament within 40 days
        • super-affirmative resolution procedure
          • available delegated legislation made under authority of legislative and regulatory reform act 2006.
          • used for statutory instruments considered to need high level of scrutiny
        • questioning of government ministers
          • individual ministers may be questioned on the work of their department.
        • scrutiny committees
          • reviews all instruments technically noy based on policy.
          • no power to alter instrumets
        • effectiveness
          • not enough time to scrutinise everything
          • not enough knowledge to effectively scrutinise
          • not enough power to change anything
      • judicial control
        • can be challenged in court by a person with sufficient standing or interest in the case by judicial review on the ground of ultra vires.
          • substantive ultra vires - where power is exercised beyond that which was delegated (r v home secretary ex parte fire brigades union)
          • procedural ultra vires - correct procedure has not been followed (Aylesbury mushroom case)
          • ultra vires on the basis of unreasonable - if it is unreasonable often known as Wednesbury unreasonable after (associated picture houses v Wednesbury corporation
            • Wednesbury test
          • ultra vires conflicting with HRA 98 - also the case for legislation conflicting EU law until we left.
        • effectiveness
          • only challenegd by someone with a standing  - someone affected by the legislation or the decision


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