1.A.2 - Delegated legislation Flashcards
Define delegated legislation.
Law made by a person or body other than Parliament, but with Parliament’s permission.
What is delegated legislation sometimes called? There are 2 names.
- Secondary legislation
2. Subordinate legislation
How many pieces of delegated legislation are created each year?
Several thousand.
True or False? : Secondary legislation is more common than primary legislation.
True - Several thousand pieces of delegated legislation are passed each year, making them far more common than statutes.
What are the 2 reasons for Parliament granting power to create delegated legislation?
- Saves parliamentary time.
2. Parliament lacks the expertise.
What is an enabling Act?
A statute which grants a person or body the power to create delegated legislation.
What is the other name for an enabling Act?
A parent Act.
An example of an enabling Act is the ________________________. This Act allows local authorities to create by-laws.
Local Government Act 1972
What are the 3 types of delegated legislation?
- Orders in Council
- Statutory Instruments
- By-laws
What are Orders in Council?
Delegated legislation made formally in the name of the Monarch, by the Monarch, upon the advice of the Privy Council.
What is the Privy Council?
The formal body of advisors to the Monarch, composed of senior politicians from across the Commonwealth.
What are the 2 types of Order in Council?
- Statutory Orders
2. Prerogative Orders
What is a Statutory Order?
An Order in Council made using powers vested in the Privy Council by an enabling Act. They are merely a Statutory Instrument subject to greater formalities.
True or False? : Prerogative Orders are the most common type of Order in Council?
False - Statutory Orders are the most common type of Order in Council.
What is a Prerogative Order?
An Order in Council made using the formal, historic prerogative powers vested into the Crown. There is no enabling Act for them.
True or False? : Th whole Privy Council must be present in order for Orders in Council to be made?
False - The Privy Council has hundreds of members, so only a few members sit when Orders in Council are being made?
When does the Privy Council sit in full sitting?
Following the death of the Monarch in order to proclaim the ascension of a new one.
Who presides over meetings of the Privy Council?
The Lord President of the Council.
Who is the current Lord President of the Council?
Andrea Leadsom MP - Leader of the House of Commons and Conservative MP for South Northamptonshire
What happens at a meeting of the Privy Council to make Orders in Council?
The Lord President reads out a list, and after each one the Monarch states the word “agreed”, which brings the Order into effect.
How many uses of Orders in Council are there?
14
What is the 1st use of Orders in Council?
Bringing Acts of Parliament into force.
What is the 2nd use of Orders in Council?
To make specific changes to a part of a statute.
Name an Order in Council which made specific changes to a part of a statute, and explain what it changed.
The Misuse of Drugs Act 1971 (Modification) (No.2) Order 2003, which reclassified cannabis as a Class C drug.
What is the 3rd use of Orders in Council?
Bringing European Union directives into force due to the absence of direct applicability.
What is the 4th use of Orders in Council?
Dealing with foreign affairs.
Give an example of an Order in Council which dealt with foreign affairs, and explain what it did.
The Afghanistan (United Nations Sanctions) Order 2001, which made it an offence to make funds available to the Taliban.
What is the 5th use of Orders in Council?
Making laws in emergency situations.
What 2 statutes allow Orders in Council to be used in emergency situations?
- The Emergency Powers Act 1920
2. The Civil Contingencies Act 2004
Give an example of when Orders in Council were used to deal with an emergency situation.
In 2001 Orders in Council were used to try and prevent the spread of the Foot and Mouth crisis.
What can the Monarch do using the Emergency Powers Act 1920?
Declare a state of emergency.
What is the 6th use of Orders in Council?
Transferring powers from Westminster to devolved legislatures.
Give an example of an Order in Council which transferred power from Westminster to a devolved legislature.
National Assembly for Wales (Transfer of Functions) Order 1999, which established the Welsh Assembly.
What is the 8th use of Orders in Council?
Dissolving Parliament prior to a general election.
What is the 9th use of Orders in Council?
Appointing heads of Crown corporations.
What is the 10th use of Orders in Council?
Governing the British Overseas Territories.
What is the 11th use of Orders in Council?
Extending the applicability of British legislation to the Isle of Man and the Channel Islands.
What is the 12th use of Orders in Council?
Making appointments to the Church of England.
What is the 13th use of Orders in Council?
Governing Northern Ireland during times of direct rule.
When were Orders in Council used to govern Northern Ireland during periods of direct rule?
1972-2007
What were the enabling Acts which allowed Statutory Orders in Council to be used to govern Northern Ireland during periods of direct rule?
The Northern Ireland Acts.
What is the 14th use of Orders in Council?
Overturning court rulings.
Give an example of the use of Orders in Council to overturn court rulings.
2004 - Controversially used to overturn a ruling which held that the exile of Chagossians from the British Indian Ocean Territory was unlawful.
What is a Statutory Instrument?
Details rules and regulations made by government ministers within their portfolio.
Around how many Statutory Instruments are made each year?
3,000
What are the most common type of delegated legislation?
Statutory Instruments
True or False? : Statutory Instruments are enforceable in the courts.
True - SIs can be enforced by the courts.
Who creates Statutory Instruments, and who helps them to do this?
Government ministers with the help of civil servants.
Whilst the enabling Act provides the legal framweork surrounding an issue,it is the SIs that fill in the necessary _______ that are too ______ to be incorporated into the statute.
- Details
2. Complex
What is a Legislative Reform Order?
A Statutory Instrument which amends existing primary legislation.
Which Act allows for the creation of Legislative Reform Orders?
The Legislative and Regulatory Reform Act 2006
Why are Legislative Reform Orders controversial?
They allow the indirectly elected executive to amend legislation; it symbolises a shift in law-making power away from the legislature. There is an absence of scrutiny.
Give an example of the use of a Statutory Instrument to update the law.
Changing the National Minimum Wage.
Who changes the National Minimum Wage annually using Statutory Instruments?
The Secretary of State for Work and Pensions.
Which Act allows the Secretary of State for Work and Pensions to change the National Minimum Wage annually using Statutory Instruments?
The National Minimum Wage Act 1998
In which month of the year is the National Minimum Wage annually adjusted using Statutory Instruments?
April
What is a Commencement Order?
A Statutory Instrument used to bring an Act, or part of an Act, into force.
True or False? : There is no time limit on when a Commencement Order must be passed after an Act is passed.
True - As a result of this, some Acts are never brought into force.
Give an example of an Act which has never had a Commencement Order passed, thus has never been brought into force.
The Easter Act 1928
What would the Easter Act 1928 do if brought into force using a Commencement Order?
Create a set date for Easter.
What are by-laws?
Delegated legislation made by local authorities or public bodies relating to their areas of jurisdiction.
Before a by-law is made, what must happen?
They must be advertised so that interested parties are consulted.
In order for a by-law to become enforceable in the courts, what must happen?
They must be approved by the appropriate government minister.
True or False? : If you fail to follow a by-law, nothing can happen.
False - By-laws can be enforceable in the courts, and usually carry a sanction for non-observance if this is the case.
Local authorities make most of their by-laws under which Act?
The Local Government Act 1972
Which 2 organisations are able to create by-laws?
- Local authorities (councils)
2. Public bodies
Give an example of by-laws created by public bodies.
Transport for London banned smoking on the Underground long before it was made illegal nationally.
Give an example of a local by-law and its enabling Act.
The Tyne Tunnel By-laws, as created by the Tyne Tunnel Act 1960.
How many reasons are there for the control of delegated legislation?
4
What is the 1st reason for needing to control delegated legislation?
Bulk - There are thousands of pieces made each year. More common than statutes.
What is the 2nd reason for needing to control delegated legislation?
Speed - Can be made quickly, and if rushed it is prone to mistakes.
What is the 3rd reason for needing to control delegated legislation?
Scrutiny - Absence of scrutiny. No parliamentary law-making process.
What is the 4th reason for needing to control delegated legislation?
Undemocratic - Made by the unelected.
What is the type of delegated legislation which needs to be controlled the most?
Statutory Instruments
Which 2 bodies control delegated legislation?
- Parliament
2. The courts
Through how many ways can Parliament control delegated legislation?
5
What is the 1st way through which Parliament can control delegated legislation?
Creation of the enabling Act - Parliament sets the scope of powers.
What is the 2nd way through which Parliament can control delegated legislation?
Revoking the enabling Act.
What is the 3rd way through which Parliament can control delegated legislation?
Procedures
What are the 2 procedures which Statutory Instruments are subject to in Parliament?
- The negative resolution procedure
2. The affirmative resolution procedure
Who decides which procedure a piece of delegated legislation is subject to?
The House of Commons Standing Committee on Delegated Legislation
What is the negative resolution procedure?
The procedure in Parliament most Statutory Instruments are subject to, where a draft is lay before Parliament and will automatically be approved unless an objection is raised within 40 days.
Within how many days does Parliament have to reject a Statutory Instrument subject to the negative resolution procedure?
40 days
What is a prayer?
A motion in Parliament to revoke a Statutory Instrument.
True or False? : Any member of either House of Parliament can lay down a prayer against a Statutory Instrument?
True
What is the only situation in which a member of the House of Lords cannot lay down a prayer against a Statutory Instrument?
If the SI relates to financial matters.
True or False? : A single prayer in the Commons is likely to be successful.
False - A prayer is unlikely to be successful unless it is signed by several members, or carries the backing of the Official Opposition.
True or False? : In the Lords, prayers are rarely voted on.
True - In the House of Lords, prayers are rarely voted on.
If a Statutory Instrument subject to the negative resolution procedure is successfully rejected by a prayer, then what will be used to revoke it?
An Order in Council.
True or False? - If a Statutory Instrument subject to the negative resolution procedure is annulled by a prayer, anything it has done is no longer valid.
False - Anything done whilst the SI was in force is still valid.
True or False? - If a Statutory Instrument subject to the negative resolution procedure is annulled by a prayer, the government are unable to make a new one.
False - The government is able to make a new Statutory Instrument.
When was the last time a Statutory Instrument subject to the negative resolution procedure was annulled, and what did it relate to?
2000, regarding elections in Greater London.
What is the affirmative resolution procedure?
A procedure undergone by Statutory Instruments under which Parliament must gain the approval of Parliament before it comes into force.
What percentage of Statutory Instruments are subject to the affirmative resolution procedure?
10%
Statutory Instruments subject to the affirmative resolution procedure tend to be perceived as being ____________ .
Controversial
True or False? : Statutory Instruments subject to the affirmative resolution procedure must be approved by both Houses.
False - If the SI relates to financial matters, it only needs to be approved by the House of Commons.
The enabling Act may require a Statutory Instrument subject to the affirmative resolution procedure to be voted upon:
- ?
- ?
- ?
- Whilst in draft form.
- Once it has been made but is yet to come into force
- Once it has been made and came into force, but it cannot remain in force for longer than a specific period (usually 28 days)
True or False? : Parliament can amend Statutory Instruments.
False - Parliament can only approve or reject Statutory Instruments; they cannot amend them.
When was the last time a Statutory Instrument subject to the affirmative resolution procedure was rejected, and what did it relate to?
1969, relating to parliamentary constituencies.
What does the acronym JCSI stand for?
Joint Committee on Statutory Instruments
What is the Joint Committee on Statutory Instruments?
A parliamentary committee of both Houses which scrutinises all Statutory Instruments.
How does the Joint Committee on Statutory Instruments scrutinise SIs?
It draws SIs it believes needs special consideration to the attention of Parliament.
A Statutory Instrument is likely to be referred to Parliament by the Joint Committee on Statutory Instruments if:
a. ?
b. ?
c. ?
d. ?
a. It imposes a charge or tax
b. It appears to have retrospective effect.
c. It appears to be ultra vires.
d. It is defective and needs clarification.
Why is a Statutory Instrument which imposes a charge or tax likely to be brought to the attention of Parliament by the Joint Committee on Statutory Instruments?
Because only elected bodies are able to impose taxes or charges,
What is a disadvantage of the Joint Committee on Statutory Instruments?
It can only make recommendations which aren’t binding on Parliament to take on board.
Legislative Reform Orders can amend primary legislation to remove _______.
Burdens.
What are the 4 examples of burdens?
- A financial cost
- An administrative inconvenience
- An obstacle to efficiency, productivity or profitability
- A sanction which affects the carrying out of lawul activity.
What are the 3 steps a minister should go through in order to create a Legislative Reform Order?
- Consultation
- Lay the order before Parliament
- Obtain the approval of Parliament
Under what section of what Act must the government propose a draft order of a Legislative Reform Order, and consult interested organisations?
s.13 of the Legislative and Regulatory Reform Act 2006
After a consultation has been held, what must the government then do with a Legislative Reform Order?
Lay it before Parliament alongside the results of the consultation.
What 3 procedures may a Legislative Reform Order be subject to?
- The negative resolution procedure
- The affirmative resolution procedure
- The super-affirmative resolution procedure
Who recommends what procedure a Legislative Reform Order should be subject to in Parliament?
The minister who proposes it.
When will the negative resolution procedure be used on a Legislative Reform Order?
If no recommendation as to what procedure should be used it made by the minister.
Who may recommend that the super-affirmative resolution procedure is used on a Legislative Reform Order?
Parliament
What section of what Act sets out the protocol for the super-affirmative resolution procedure?
s.18 of the Legislative and Regulatory Reform Act 2006.
What is the super-affirmative resolution procedure?
A procedure Legislative Reform Orders are subject to in Parliament, which gives Parliament greater power to scrutinise the Statutory Instrument.
Why are super-affirmative resolution procedures necessary for Legislative Reform Orders?
Because they give Parliament greater powers of scrutiny over Statutory Instruments which can amend existing primary legislation.
What is the 1st stage of the super-affirmative resolution procedure?
A consultation on the Legislative Reform Order must be held.
What is the 2nd stage of the super-affirmative resolution procedure?
The Legislative Reform Order, the results of the consultation, and an explanatory memorandum must be lay before Parliament. The minister must wait 60 days before the Order can come into force.
What is the 3rd stage of the super-affirmative resolution procedure?
Select Committees from both Houses examine the Legislative Reform Order.
What do Select Committees look at when examining a Legislative Reform Order?
The proposals and the extent to which the burden will be lifted by it.
What is the 4th stage of the super-affirmative resolution procedure?
The Select Committees report their findings back to the government who decide whether they should proceed with the proposal. If they choose to do so they must take the Select Committees’ findings into account.
What is the 5th stage of the super-affirmative resolution procedure?
Both Houses of Parliament vote on the Legislative Reform Order.
What is the disadvantage of the super-affirmative resolution procedure?
It is slow.
What is the 4th way through which Parliament can control delegated legislation?
The Joint Committee on Statutory Instruments
What is the 5th way through which Parliament can control delegated legislation?
Control of Legislative Reform Orders.
What is the 6th way through which Parliament can control delegated legislation?
Holding government ministers to account about their SIs through asking questions.
Who can challenge delegated legislation in the courts?
Any individual with an interest in it.
What is judicial review?
The process of challenging the validity of delegated legislation in the courts.
Where does judicial review take place?
In the Queen’s Bench Division of the High Court.
What does ultra vires mean?
“Beyond the powers” - the delegated legislation goes beyond the powers granted by Parliament in the enabling Act.
What are the 2 types of ultra vires?
- Substantive ultra vires
2. Procedural ultra vires
What happens if a piece of delegated legislation is found to be ultra vires?
It is ruled to be void.
What is substantive ultra vires?
The delegated legislation goes beyond the powers granted in the enabling Act.
Give a case to demonstrate substantive ultra vires, and explain what was held.
R v Secretary of State for Health ex parte Pfizer [1999], held that the SI the Secretary of State had created advising against the prescription of viagra went beyond the powers granted in the enabling Act.
What is procedural ultra vires?
The person who created the delegated legislation has not followed the procedure set out in the enabling Act.
Give a case to demonstrate procedural ultra vires, and explain what was held.
Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushrooms Ltd. [1972], held that the Minister for Labour failed to consult the interested parties as required by the enabling Act.
Besides finding a piece of delegated legislation to be ultra vires, what else may the High Court rule under the judicial review procedure?
That a piece of delegated legislation is unreasonable.
What does the term “unreasonable” mean?
The creator took into account matters that they ought not to have done, or did not take into account matters they ought to have done, and as a result the delegated legislation would not have been made by any reasonable person.
What is the case which establishes examples of unreasonableness?
Associated Provincial Picture Houses v Wednesbury Corporation [1948]
What are the 3 examples of unreasonableness created by the Wednesbury case?
- The rules are unjust
- The rules have been made in bad faith
3 The rules are so perverse that no reasonable person would have made them.
Give a case to demonstrate unreasonableness, and explain what was held.
Strickland v Hayes [1896], held that a by-law prohibiting the singing of an obscene song or ballad was unreasonable as it was drawn too widely and not restricted to public places (it included private property).
How can you use the Human Rights Act 1998 to challenge a piece of delegated legislation?
If you believe the delegated legislation is not compatible with the Act.
What section of the Human Rights Act 1998 can be used to challenge delegated legislation which is not compatible with it?
s.6(1)
What 3 problems are there with the courts when it comes to challenging delegated legislation?
- Delegated legislation must be brought to the courts by someone interested by it. It can be in effect for a long time before anyone challenges it.
- Courts cannot amend - only declare void
- Hard to establish what is ultra vires if the discretionary powers granted by the enabling Act have a wide scope.
What is a Henry VIII clause?
A clause added to a Bill which allows the government to amend it once it becomes an Act.
What are the 4 advantages of delegated legislation?
- Saves parliamentary time
- Expertise
- Quick, especially in emergencies
- Easily amended or revoked if a problem arises. Harder to amend or revoke an Act.
What are the 4 disadvantages of delegated legislation?
- Undemocratic
- Sub-delegation: made by civil servants rather than the minister themselves. Removes decisions away from the elected minister.
- Volume - hard to keep track of the current law.
- Little publicity compared to statutes - few people know it exists.
What are the 4 devolved legislatures in the UK?
- The Scottish Parliament
- The National Assembly for Wales
- The Northern Ireland Assembly
- The London Assembly
What is the devolved legislature for Wales?
The National Assembly for Wales.
Where does the National Assembly for Wales sit?
In the Senedd building in Cardiff.
What are members of the National Assembly for Wales called?
Assembly Members (AMs)
How many AMs sit on the National Assembly for Wales?
60
Which Act established the National Assembly for Wales?
Government of Wales Act 1998
Prior to further devolution, what was legislation made by the National Assembly for Wales called?
Assembly Orders
How many areas does the National Assembly for Wales have powers to legislate in?
20
Give examples of areas in which the National Assembly for Wales can legislate.
Agriculture, fisheries, forestry, culture, education and training, environment, fire and rescue services, food, health, highways and transport, housing, local government, sport, recreation, tourism, town planning, water, the Welsh language.
Give an example of a law passed by the National Assembly for Wales.
Wales maintains the current A*-U GCSE grading system and retained AS and A Levels.
