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Published by: _daley on Oct 25, 2010
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AS Level Law

Sources of Law

Delegated Legislation

AS Level Law What you need to know: ‡ The main types of delegated legislation ‡ How delegated powers are controlled What you need to discuss: ‡ The advantages and disadvantages of delegated legislation ‡ The effectiveness of the various forms of control .

HASAWA·74) .g.AS Level Law Introduction ‡ Delegated legislation is law made by individuals and institutions acting under a grant of legislative authority from Parliament ‡ Delegated powers are usually granted in an enabling Act ‡ This Act will establish a framework of general principles and grant powers to fill in the details (e.

issued by local authorities (and some public corporations). generally only used in emergencies . regulations and orders. national in effect ‡ byelaws .rules. issued by ministers.AS Level Law Types of Delegated Legislation ‡ statutory instruments .issued by the Privy Council. local in effect ‡ Orders in Council .

health and safety regulations) ‡ quicker and easier to amend and update than primary legislation ‡ able to respond quickly to emergencies ‡ allows for local variation to meet local need .g.AS Level Law Reasons for/Advantages of DL ‡ to save parliamentary time ‡ to deal with complex and technical issues (e.

AS Level Law Need for controls ‡ DL results from transferring law-making powers from the legislature to the executive therefore ‡ delegated powers must be subject to effective checks and controls to ensure accountability and prevent misuse .

may form the basis for judicial review .by requiring a public exercise of the power  indirectly .AS Level Law Consultation ‡ often required by the enabling Act ‡ acts as a check in two ways:  directly .

AS Level Law Parliamentary oversight ‡ may seem to conflict with need to save parliamentary time ‡ however. a responsible Parliament must monitor the use of powers it has delegated ‡ two main forms of oversight:  affirmation process  scrutiny committee .

not implemented .AS Level Law Affirmation process ‡ most SIs must be affirmed before coming into force ‡ positive affirmation .instrument only comes into force after approval by positive resolution in Parliament ‡ negative affirmation .instrument comes into force unless annulled by a negative resolution in Parliament ‡ negative more common BUT reliance on this may mean draft instruments receive inadequate policy scrutiny ‡ Hansard Society proposed to refer draft SIs to relevant departmental select committee for policy review before affirmation .

AS Level Law Scrutiny Committee ‡ reviews technical merits of all draft SIs ‡ refers to Parliament those giving cause for concern (e.g. unusual or unexpected use of the power) therefore ‡ Committee acts as a filter so that Parliament need only consider the small number of instruments referred .

g.AS Level Law Judicial Review ‡ limited nature of delegated powers means that courts can annul DL where it is ultra vires (outside or beyond the power) ‡ substantive ultra vires .e.subject matter outside scope of power (A-G v Fulham Corp [1921]) ‡ procedural ultra vires . failure to consult (Agricultural Training Board v Aylesbury Mushrooms [1972]) .subject matter intra vires but serious failure to comply with a mandatory procedural requirement .

AS Level Law Conclusion ‡ DL inevitable and beneficial ‡ Executive law-making needs effective checks and controls ‡ present controls are largely adequate ‡ need to improve policy review of draft SIs by Parliament .

Parliamentary oversight DL . enabling acts etc) DL .Consultation DL .Need for controls DL .Judicial review DL .Reasons for DL .AS Level Law Revision Headings: DL .Conclusion .Types of DL .Intro (definition.

you should now be able to write a short paragraph in response to each of the following questions: ‡Define what is meant by delegated legislation and how delegated powers are granted. ‡Identify the main reasons for and advantages of delegated legislation. . ‡Evaluate the effectiveness of these mechanisms.AS Level Law Test Questions: Using your cards. ‡Explain why checks and controls are needed over the use of delegated powers. ‡Describe the existing check and control mechanisms. ‡Describe the main forms of delegated legislation.

parliament.cfm#newdeleg Þ For more information on Statutory Instruments and Orders in Council there is a House of Commons Factsheet (No.pdf .uk/works/newlaw.parliament.14) available at www.uk/commons/lib/fs14. visit www.AS Level Law Useful Websites: Þ For more information on delegated legislation generally.

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