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DELEGATED LEGISLATION

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Introduction

DELEGATED LEGISLATION Examination questions and syllabus entry Government: delegated legislation 1. 1989/6 (a) Describe (i) judicial and (ii) parliamentary control over delegated legislation. (b) Discuss the effectiveness of these controls. 2. 1995/2 "- the system of delegated legislation is both legitimate and constitutionally desirable for certain purposes within certain limits and under certain safeguards." Committee on Minister's Powers 1932 Cmnd. 4060. Discuss in relation to the need for such powers, the limits that apply and the safeguards which have been established to protect individuals.(25) What is delegated legislation? Some examples of delegated legislation are commencement orders, regulations, orders, rules, Church of England Measures, Northern Ireland Orders (mostly Orders in Council), and the Highway Code. Delegated legislation is usually created by an Act of Parliament, but it can be made under the Royal Prerogative (although this is termed subordinate legislation, since delegated legislation can only be created by delegated (statutory) authority). Although the sovereignty of Parliament necessarily implies total freedom to create delegated legislation by what ever form it chooses in practice there are a limited number of types of delegated legislation: Types of delegated legislation * Local authority by-laws, made by local councils under enabling Acts. * Public corporation by-laws - made under statutory authority. * Rules of court, made by the rules committees. * European regulations, made by the European Commission and law as a result of the European Communities Act 1972. ...read more.

Middle

This acquiescent control means that if the instrument is not rejected by a motion of either House within the statute-specified time (almost always 40 days) it will become law. Having instruments on annulment is the most common form of control, with all EU statutory instruments so passed. About 1000 instruments are passed on annulment each year. No negative motions have been carried since October 1979, with around 7 negative resolution statutory instruments debated in the whole House, and 15 in Committee per session - meaning that less than 2% of such statutory instruments are considered at all. Positive resolution Instruments thus passed do not become law unless voted for by both houses of Parliament (about 150-200 instruments per year are passed on positive resolution), and some must be passed within a statutory time limit. Most instruments are only required to be laid before Parliament in draft (since Parliament does not amend statutory instruments, scrutiny prior to promulgation allows drafting errors to be corrected) and are considered in standing committee (about 1/3 of such committees are carried out on the floor of House, with no instruments defeated since July 1978). Information only The main instruments thus passed are commencement orders and local legislation. The only requirement is for Parliament to have a copy of the instrument laid before it. About 1 in 10 of all statutory instruments (that is about 150 per year) ...read more.

Conclusion

Unlawful parts of orders may be severed. Publication Notice must be given a month before publication in local press, and a copy must be available for public inspection. They must be available for public inspection at the local authority office, and for sale for a sum not exceeding 20p; but these obligations are frequently flouted. By-laws are generally passed under the authority of the Local Government (Miscellaneous Provisions) Act 1982 or the Local Government Act 1972. Challenge to the validity of delegated legislation Judicial review is the only process by which delegated legislation may be challenged. Although called review, this nomenclature is somewhat misleading, since the process is at best a scatter-gun approach, relying on a well-heeled challenger noticing the defects of legislation, something that is not easy to do. Thus for every piece of delegated legislation that is challenged it is likely that a dozen more invalid laws survive. However, the process is highly effective once the delegated legislation has been challenged. As to the challenge of codes of practice, guidelines, etc., which have no legal status, but can still have a major impact on the running of the country, as with, for example, the Police and Criminal Act Codes of Practice, the position is uncertain, but it seems that the more specific the guidelines, (especially where statute obligates the documents' production) the more likely that judicial review will take place. There are two methods of challenge: as a defence to an action, or by direct challenge ...read more.

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