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Delegated Legislation > 👀 > Flashcards

👀 Flashcards

1
Q

What is the enabling act?

A

Parliament must make an act of parliament that gives away its law making powers

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2
Q

Examples of enabling acts

A
  • Access to justice act 1999 ( lord chancellor can alter aspects of legal funding schemes)
  • Disability discrimination act 1995
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3
Q

Enabling act must pass through parliamentary process which has 6 steps

A
  1. Green/white paper
  2. 1st reading
  3. 2nd reading
  4. Committee stage
  5. Referral stage
  6. 3rd reading
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4
Q

What are the three types of delegated legislation?

A
  1. Orders in council
  2. By laws
  3. Statutory instruments
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5
Q

Key points about orders in council

A
  • Queen and privy council have authority under the Emergency powers act 1920
  • Hardly ever used
  • Only happens in emergency/ quick decision
  • Parliament can alter the law later on
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6
Q

Key points about by laws

A
  • Local councils can make law
  • Used for local issues (e.g. Fine for litter)
  • only valid within the specific area
  • Also used by public corporations ( e.g. Airports)
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7
Q

Key points about statutory instruments

A
  • Most common form of delegated legislation
  • Around 3000 per year
  • Ministers and government departments have authority to make regulations
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8
Q

In 1998 the government of Wales act established the…

A

Welsh assembly (can create law to govern Wales)

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9
Q

How many areas of law did parliament delegate to Wales?

A

20 ( with 20 being still governed by parliament)

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10
Q

Up until 2010 the Welsh government had to…

A

Seek approval from parliament for all laws it passed

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11
Q

What was the result of the 2011 referendum?

A

Government were given more power and didn’t have to seek permission from parliament before passing laws

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12
Q

Why is the human rights act controversial with delegated legislation?

A

Can make amendments to primary legislation that seem incompatible with human rights

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13
Q

What is the Henry viii clause?

A

Parliament can delegate powers to enable ministers to make primary legislation compatible with the convention

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14
Q

Name the 5 controls by Parliament

A
  1. Enabling act
  2. Delegated powers scrutiny committee (1993)
  3. Affirmative resolutions
  4. Negative resolutions
  5. Scrutiny committee (parliamentary committee 1973)
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15
Q

Key points on enabling act

A
  • Gives guidelines on how much power it will have

- If enabling act is removed then so is the power to create delegated legislation

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16
Q

Key points on delegated powers scrutiny committee

A
  • Analyses legislation to make sure they stay within guidelines
  • If something goes beyond its power they report it to parliament
  • Has no power to amend proposed law
17
Q

Key points on affirmative resolutions

A
  • Some enabling acts require the statutory instrument to be sent for approval to parliament in the form of affirmative resolutions (e.g. Tax)
  • It ensures statutory instruments don’t become law unless approved by parliament
18
Q

Key points on negative resolutions

A
  • States a statutory instrument will become law unless rejected by parliament within 40 days
  • Only some enabling acts require this
19
Q

Key points on scrutiny committee

A
  • Reviews all statutory instruments
  • Will draw attention of both Houses of Parliament to points that need consideration (technical review)
  • Deals with tax, retrospective effect, goes beyond powers, unclear/defective
  • Can only report findings, has no power to alter
  • Hansard society (1992) found some critical findings were ignored by ministers
20
Q

Name the 3 controls by courts

A
  1. Unreasonable ultra vires
  2. Substantive ultra vires
  3. Procedural ultra vires
    Ultra vires = beyond its power
    Void if conflicts with eu law
21
Q

What are the 2 situations for questioning the validity of delegated legislation?

A
  1. As part of a civil claim
  2. Judicial review ( case specifically brought to court to challenge the law)
    Any delegated legislation found to be ultra vires is void and not effective ( r v Home Secretary 1995)
22
Q

What is unreasonable ultra vires?

A

Making unreasonable regulations ( Strictland v Hayes Borough Council 1896- prohibited signing of obscene songs and language, too widely drawn)

23
Q

What is substantive ultra vires?

A

Where the measure under review goes beyond its powers

24
Q

What is procedural ultra vires?

A

Need to give you a chance to complain, gone beyond powers if they don’t (Aylesbury mushroom case 1972- didn’t consult mushroom growers association)

25
Q

6 argument for delegated legislation

A
  1. Insufficient parliamentary time
  2. Speed
  3. Technicality of the subject matter
  4. Need for local knowledge
  5. Flexibility
  6. Future needs
26
Q

5 reasons against delegated legislation

A
  1. Sub delegation
  2. Lack of democratic involvement
  3. Overuse
  4. Lack of control
  5. Interpretation

Delegated Legislation (1 decks)

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