7 - Law making : Delegated legislation

Question 1

What is delegated legislation?

Answer 1

secondary legislation made by someone other than parliament, with parliaments permission

Question 2

Parent acts/enabling acts

Answer 2

The enabling Act creates the framework for the law and then delegates power to others to add the detail

Question 3

Orders in council

Answer 3

Made by the privy council, who are the prime minister and other leading members, without needing the whole of parliament to make a decision

Question 4

Reason for orders in council

Answer 4

Can respond quickly to an emergency situation

Question 5

Example of an order in council

Answer 5

Misuse of Drugs Act 1971 altered in 2003 to make Cannabis a class C drug, later repealed and went back to a class B drug

Question 6

Statutory instruments

Answer 6

Rules and regulations made by Government Ministers within their Department (there are 15 of them)
Minister of Transport will deal with road traffic regulations

Question 7

Reason for the privy council

Answer 7

Parliament couldn’t cope with the amount and complexity so is better for experts to have responsibility in different areas

Question 8

How many statutory instruments passed a year

Answer 8

3000

Question 9

By laws

Answer 9

By Laws can also be made by public corporations or councils and certain companies which involve the public
British Airports and Railways – enforce public behaviour in their area
County councils may may laws that cover the entire county

Question 10

Reason for by laws

Answer 10

Parliament has neither time or local knowledge to make regulations on a local scale

Question 11

Examples of by-laws

Answer 11

No parking
no ball games

Question 12

why must DL be tightly controlled

Answer 12

DL can be made by un-elected bodies

Question 13

How does parliament control DL using the enabling act

Answer 13

It details:
Which Government Ministers can make regulations
States the type of law
Whether they can be made for the whole county or just certain areas

Question 14

How many parliament tackle controverisal areas of DL

Answer 14

Parliament may insist that the draft legislation is scrutinized and voted on before coming into force
this is done by including an affirmative resolution order in the parent act

Question 15

affirmative resolution

Answer 15

effects a small number of statutory instruments.
Means that they will not become law unless specifically approved by Parliament.

Question 16

What are the downsides of affirmative action?

Answer 16

Disadvantage – Parliament cannot amend anything they can only, approve, annul or withdraw
counter intuitive as still need guidance by parliament

Question 17

Negative resolution order

Answer 17

Effects most statutory instruments
Means that statutory instruments will become law unless rejected by Parliament within 40 days

Question 18

The delegates powers scrutiny comittee

Answer 18

This is an effective check but has no power to alter any statutory instrument
Reviews all statutory instruments and will highlight concerns to both Houses

Question 19

Disadvantage of negative resolution

Answer 19

very few statutory instruments are ever looked at

Question 20

Disadvantages of power scrutiny commitee

Answer 20

it is a technical review not a policy based one. Can only make objections based on:
It imposes a tax or charge (only an elected body has the right to do that)
Has a retrospective effect
Gone beyond the powers given to it
Makes unusual or unexpected use of these powers
Unclear or defective in some way

Question 21

Role of the joint scrutiny commitee

Answer 21

simply to scrutinise statutory interpretation

Question 22

Aims of the Special Controls under the Legislative and Regulatory Reform Act 2006

Answer 22

removing a burden -Financial cost/Administrative inconvenience ect

Any Minister making a statutory instrument under this act must consult:
Organisations which are affected by the proposals
Devolved Assemblies
Law Commission

Orders made under this act have to go before Parliament by
Negative Resolution Procedure
Affirmative resolution procedure
Super-affirmative resolution procedure – gives Parliament more control

Question 23

When may the courts control delegated legislation?

Answer 23

when a party applies to the queens bench division of the high court for a review

Question 24

Ultra vires

Answer 24

the revie may find it ultra vires (beyond the powers given by the enabling act) and therefore void

Question 25

Procedural ultra vires

Answer 25

A secondary body has exceeded the powers and failed to follow the procedural instructions in the parent act

Question 26

Substantive ultra vires

Answer 26

The secondary body has gone beyond the powers granted to it and made more regulations than permitted

Question 27

What effect may EU law have on delegated legisaltion?

Answer 27

May be found ultra vires if it conflicts with eu law

Question 28

What will courts likely assume?

Answer 28

unless the enabling act specifically allow for it then there is no power to:
Make unreasonable regulations – Strickland v Hayes Borough Council 1896 – by law banning singing of any obscene song – held to be ultra vires as it was unreasonable.
Levy taxes
Allow sub-delegation

Question 29

Advantages of delegated legislation

Answer 29

Saves Parliaments time
Allows for technical expertise to be used to fill in the details of a delegated legislation – the idea is that Parliament can debate the main principles but leave the detail for experts / local knowledge
Allows consultation
Allows quick law making
Easy to amend – eg. Changing minimum wage in line with inflation etc

Question 30

Disadvantages of delegated legislation

Answer 30

undemocratically elected (this doesn’t apply to by-laws etc as they are made by local council who are also elected)
Sub-delegation ie. Civil servants making the law and just being approved or “rubber stamped” by the Minister of the Department
Large amount of delegated legislation means that it can be difficult to discover what the present law is. This is made worse by lack of publicity
Some Delegated Legislation has some very difficult and complex wording which makes it difficult to understand.