Delegated Legislation

cacinujo's version from 2017-03-26 19:38


Question Answer
What is delegated legislation?Law made by some person or body other than Parliament, but with the authority of Parliament; this authority is usually laid down in a 'parent' Act of Parliament known as an enabling Act.
Create framework of law -> detail!
Reasons for del leg?1) P no in power emergency => 9/11 CLOSURE OF UK AIRPORTS.
2) Need 4 detail, fill in outline of primary legs => design of traffic signs using TS REGULATIONS. P 2 bus-> ministry of traffic dpt.
3) Update rules => ban mob phones whilst driving
4) Deal w/ local issues => ban selling pigeon food - Traf square GR8R LDN AUTHORITY ACY 1999
5) Deal w/ specific needs of pub auth => ban alcohol on underground
Who makes Orders in Council?The Queen and the Privy Council (Prime Minister and other leading members of the Government); the powers to make Orders in Council normally have to be authorised by statute
What do Orders in Council effectively allow the Government to do?Make legislation without going through Parliament
What is today's main use of Orders in Council?To give effect to European Directives
Name an important use of Orders in Council?For emergency situations such as times of war or when Parliament is not sitting
Name an act that an Order in Council was used to alter?In 2004 an Order in Council was used to alter the Misuse of Drugs Act 1971 to make cannabis a class C drug. It was later changed back to a class B drug using another Order in Council
What are Orders in Council?Orders that have been approved at a meeting of the Privy Council and personally by the Queen. The power to make such orders comes from two sources and therefore Orders in Council fall into two categories; Statutory and Prerogative Orders
What are statutory orders?These are made under any of the numerous powers contained in Acts of Parliament which give Her Majesty a power to make Orders
Who prepares Orders in Councils?The Minister responsible to Parliament and they each require the assent of the Monarch and the Privy Council
What are statutory instruments?Rules and regulations that are made by Government Ministers; this is a major method of law making (300 SIs are brought into force each year)
How are statutory instruments made?The Constitutional Reform Act 2005 and SOPCA 2005 give Ministers of the State and Government departments the discretionary powers to make regulations for areas under their particular responsibility; they are not subject to debate in either house
What are statutory instruments used for?Bringing in an Act of Parliament
What does the Legislative and Regulatory Reform Act 2006 give?Gives Ministers the power to make any provision by order if it will remove a 'burden' resulting from legislation; this means that Ministers can change Acts of Parliament, even though the original Act did not give them the power to do this. However, the Government gave a clear undertaking that orders made under the Act would 'not be used to implement highly controversial reforms'
Who are bylaws made by?Local authorities to cover matters within their own area; delegated authority may be conferred on public authorities to make by-laws
When are bylaws usually created?When there is no general legislation that deals with particular matters of concern to local people
What must happen to bylaws before they can come into force?They must be 'confirmed' by a secretary of state for the government before applying for approval; councils have to advertise any proposed bylaws in the local press to give members of the public a chance to comment on them
Give two examples of how bylaw have been used.To control dog fouling and have also been used by the London Underground to ban smoking in the stations
Give eight advantages of delegated legislation.Parliament does not have time to consider and debate every small detail of complex regulations so delegated legislation allows parliament time to devote to legisation; parliament may not have the necessary technical expertise or knowledge required; ministers can have the benefit of further consultation before regulations are drawn up; the process of passing an Act of Parliament can take considerable time and in an emergency, Parliament may not be able to pass law quickly enough; new regulations that prove unsatisfactory may be withdrawn quickly and replaced with others; it can also be used to authorise the delay or implementation of certain statutes; it allows for experimentation being made and allows us to learn from experience; it is the only convenient or even possible remedy in many occasions
Give seven criticisms of delegated legislation.It takes law making away from the democratically elected House of Commons and allows non-elected people to make law; sub-delegation occurs which means that law making is handed down another level; the large volume of it makes it difficult to discover what the present law is; obscure wording can lead to difficulty in understanding the law; there is a lack of debate and a lack of publicity; there is limited parliamentary scrutiny; the controls are limited
Why is it important that there is some control over delegated legislation?It is made by non-elected bodies and there are so many people with the power to make Delegated Legislation
In which two ways is delegated legislation controlled?By Parliament and by the courts; in addition, there may sometimes be a Public Inquiry before a law is passed on an especially sensitive matter
Explain initial control within Parliament.Parliament has initial control with the enabling Act; the enabling act should clearly set out the powers that have been delegated, ensuring that the 'Parent Act' is not drafted to give wide delegated powers that are difficult to control
What happens during discussion in Parliament?This is the Prime Minister's question time; the pressure on parliamentary time regarding delegated legislation is very limited
What is the role of the HOL's Select Committee on Delegated Powers and Regulatory Reform?To consider whether the provisions of any Bills delegate legislative power inappropriately
What is laying before Parliament?Generally, a statutory instrument is laid before both Houses; those concerning finance matters are first laid before the House of Commons; this procedure is dependent upon the provisions in the Parent Act as there are various ways of laying an order before Parliament
Name four ways in which a Statutory Instrument can be laid before Parliament.Laying simpliciter; laying subject to an affirmative resolution; laying subject to a negative resolution; the super-affirmative resolution procedure
What is laying simpliciter?The Parent Act may do no more than make it obligatory for the instrument to be laid on the table of both Houses for the information of members; no resolutions (voting) are necessary for the instrument to become effective
What is laying subject to an affirmative resolution?When a SI is subject to an affirmative resolution, it will not become law unless specifically approved by Parliament; an affirmative resolution is required before new or revised police Codes of practice can come into force. Parliament cannot amend the SI, it can only be approved, annulled or withdrawn
What is laying subject to negative resolution?This is the most common method of laying before Parliament; it means that the relevant statutory instrument will be law unless rejected by Parliament within forty days
What is the super-affirmative resolution procedure?This new procedure allows Parliament to suggest changes to the order if made within sixty days
Describe the process of scrutiny.A Joint Committee of both Houses of Parliament scrutinises all statutory instruments and drafts instruments where appropriate
What are the main grounds for referring a statutory instrument back to the House of Parliament?It imposes a tax or charge; it appears to have retrospective effect; it appears to have gone beyond the powers of the Enabling Act; it is unclear or defective in some way
Explain the Joint Committee's power in terms of statutory instruments.Less than 2% of the instruments scrutinised by the Committee are reported to the Houses of Parliament even though the Committee reports on every instrument. The committee has no power to alter any statutory instrument
Briefly explain control by the courts (judicial review).Generally, judicial responsibility in respect of statutes is confined to interpretation, however, with delegated legislation judges have more flexibility
On what grounds can delegated legislation be challenged in the courts?On the grounds that it is ultra vires, i.e. it goes beyond the powers that Parliament granted in the enabling Act; this questioning of the validity of Delegated Legislation may be made through judicial review, or it may arise in a civil claim, or on appeal
Give four examples of the types of decision which may fall within the range of judicial review.Decisions of local authorities in the exercise of their duties to provide various welfare benefits; certain decisions of the immigration authorities and immigration Appellate Authority; decisions of regulatory bodies; decisions relating to prisoners' rights
Briefly describe the process of judicial review.In the Queen's Bench Division of the High Court, the judge will consider whether the Delegated Legislation was created in the correct way
Name three remedies available to the judge in judicial review.Mandatory orders (makes them do something); prohibiting orders (requires they don't do something); quashing orders (undos something already done)
Name the two types of ultra vires.Procedural and substantive
Explain procedural ultra vires.It is alleged that the correct procedures for making delegated legislation laid down in the enabling act has not been followed
Give an example of a case using procedural ultra vires.Aylesbury Mushroom case (1972): The Minister of Labour's failure to consult the Mushroom Growers' Association meant that his order establishing a training board was invalid as against mushroom growers, though it was valid in relation to all others affected by the order as the minister had consulted with the National Farmers' Union
Explain substantive ultra vires.It is alleged that the organisation/person who made the law has done something that they were not permitted to do, i.e. they have gone beyond their powers
Give an example of a case where substantive ultra vires was used.R v Home Secretary, ex parte Fire Brigades Union 1995: changes by the Home Secretary to the Criminal Injuries Compensation scheme were held to have gone beyond the power given in the Criminal Justice Act 1988
What presumption will the courts make when using substantive ultra vires?That unless an enabling Act expressly allows it, there is no power to do any of the following: make unreasonable regulations; levy taxes; allow sub-delegation
Name a case where unreasonable regulations were used as an exception when using substantive ultra vires.Strictland v Hayes BC (1896): a bylaw prohibiting the singing or reciting of any obscene song or ballad and the use of obscene language generally, was held to be unreasonable and so ultra vires, because it was too widely drawn in that it covered acts done in private as well as in public
Discuss the effectiveness of parliamentary controls.Parliamentary powers to control Delegated Legislation are limited as the Enabling Act can give very wide powers for others to create delegated legislation such as ministers; Affirmative Resolution only allows approval/withdrawal of Delegated Legislation, no changes; the Scrutiny Committee have no powers to change SIs and can only refer back to Parliament on technical matters such as it imposing a tax or acting retrospectively or even if it goes beyond the powers in the enabling Act
Discus the effectiveness of courts control.Judicial review relies on an individual starting a claim; many don't as they do not have knowledge of the Judicial review procedure or even know that they have a right to bring an action; many do not have the funds to start a claim; the enabling act can give such wide powers that it can sometimes be difficult to claim ultra vires