Chapter 4-Law Marking: delegated legislation

Question 1

Definition of delegated legislation.

Answer 1

Law made by some one other than parliament but with the authority of parliament.

Question 2

3 different types of delegated legislation are?

Answer 2

Orders in council
Statutory instruments
By-laws

Question 3

Orders in council are made by who?

Answer 3

The queen and the privy council have the authority to make orders in council.

Question 4

Privy council is made up of who?

Answer 4

Prime minister and other leading members of government.

Question 5

Orders in council can be made in a wide range of matters, especially?

Answer 5

Transferring responsibility between government departments.
Bring acts of parliament into force
As member of EU giving legal effect to European directives.

Question 6

Under which act does privy council have power to make decisions in emergency situations?

Answer 6

Civil contingencies act 2004

Question 7

Example of act made by orders in council?

Answer 7

Misuse of drugs act 1971

Made cannabis a C class drug. 5 years later gov decided to make it a B through orders in council.

Question 8

There must be a …….. act allowing the privy council to make orders in council on particular topics?

Answer 8

Enabling

Question 9

Another example of act that gives power to make orders in council?

Answer 9

Constitutional reform act 2005

Question 10

Statutory instruments definition.

Answer 10

Rules and regulations made by government ministers.

Question 11

Example of statutory instrument which includes a lot of detail?

Answer 11

Building regulations 2010
10 parts and 6 schedules.
Amended number of times by further regulations.

Question 12

How many statutory instruments are made a year?

Answer 12

3000

Question 13

Another example of a statutory instrument.

Answer 13

Codes of practice under PACE (police and criminal evidence) act 1984

Question 14

By-Laws definition

Answer 14

Made by local authorities or public corporations to cover matters within their area.

Question 15

Examples of by-laws?

Answer 15

Matters as banning drinking in public places or banning people from riding cycles in local parks.

Question 16

Parliaments has 4 ways to check on delegated legislation what are they?

Answer 16

Affirmative resolution
Negative resolution
questioning of government ministers
Joint select committee on statutory instruments.

Question 17

Affirmative resolutions.

Answer 17

This means the statutory instrument will not become law unless specifically approved by parliament. The need for an affirmative resolution will be included in the enabling act.

Question 18

Negative resolutions

Answer 18

Most other statutory instruments are subject to this, it means the relevant statutory instrument will be law unless rejected by parliament within 40 days.

Question 19

What’s the main problem with negative resolutions?

Answer 19

Very few of the statutory instruments will be looked at.

Question 20

Questioning of government ministers.

Answer 20

Individual ministers may be questions by MP’s in parliament on the work of their departments.

Question 21

Scrutiny committee

Answer 21

The committee reviews all statutory instruments and will draw attention to both houses to points that need further consideration.

Question 22

What are the main grounds for referring a statutory instrument back to the Houses of Parliament?

Answer 22

It imposes a tax or charge(only an
elected body has such a right).
It appears to have retrospective effect
It appears to have gone beyond the powers given under enabling legislation
It makes some unusual or unexpected use of those powers
It is unclear or defective in some way.

Question 23

What does the scrutiny committee have the power to do?

Answer 23

Only report back on findings

No power to alter any statutory instruments.

Question 24

Main problems of statutory instruments ?

Answer 24

Review is only a technical one limited to the points set out above.
Even if committee find a breach of some sort they cannot alter any regulations or stop them from becoming law.

Question 25

The Legislative and regulatory reform act 2006

Answer 25

Sets procedure for the making of statutory instruments which are aimed at repealing an existing law in order to remove a ‘burden’.

Question 26

The term ‘burden’ means?

Answer 26

A financial cost
An administrative inconvenience
An obstacle to efficiency; productivity or profitability
A sanction, criminal or otherwise, which affect the carry on of any unlawful activity.

Question 27

Any minister making a statutory instrument under the powers of the Legislative and Regulatory Reform act 2006 must consult various people and organisations these include?

Answer 27

Organisations which are representative of interests substantially affected by the proposals
The Welsh parliament in relation to matters upon which the Assembly exercises functions
The law commission where appropriate

Question 28

Orders made under legislative and regulatory reform act 2006 must be laid before Parliament. There are 3 possible procedures?

Answer 28

Negative resolution procedure
Affirmative resolution procedure
Super affirmative procedure

Question 29

Negative resolution procedure explain?

Answer 29

Where the minister recommends that this procedure should be used, it will be used unless within 30 days one of the Houses of Parliament objects to this.
If the negative resolution procedure is adopted, the legislation will not become law until it has been laid before parliament for 40 days.

Question 30

Affirmative resolution procedure explain?

Answer 30

Requires both House of Parliament to approve the order; even though the minister has recommended this procedure parliament can still require the super affirmative resolution procedure to be used.

Question 31

Super-affirmative resolution procedure explain?

Answer 31

Under this the minister must have regard to:
Any representations
Any resolution of either House of Parliament
Any recommendations by a committee of either House of Parliament who are asked to report on the draft order.

Question 32

Super affirmative resolution procedure gives what kind of power

Answer 32

Gives parliament more control over delegated legislation made under the Legislative and regulatory reform act 2006.

Question 33

Delegated legislation can be challenged in the courts on the ground that it is Ultra Vires define this term.

Answer 33

It goes beyond the powers that the Parliament granted in the enabling Act.
Any delegated legalisation that is ultra vires is not valid law.

Question 34

Example of delegated legislation which was ruled to be ultra vires and not effective was?

Answer 34

R v Home Secretary,ex parte Fire brigades union (1995)
Where changes made by the Home Secretary to the criminal injuries compensation scheme were held to have gone beyond the power given to him in the CJA 1988.

Question 35

The courts will presume that unless an enabling act expressly allows it, there is no power to do any of the following:

Answer 35

Make unreasonable regulations
Levy taxes
Aloe sub-delegation

Question 36

Aylesbury Mushroom Case (1972)

Answer 36

Minister of Labour had to consult ‘any organisation… appearing to him to be representative of substantial numbers of employers engaging in the activity concerned.’
His failure to consult the Mushroom growers’ association which represented 85% of all mushroom growers mean that his order establishing a training board was invalid as against mushroom growers.

Question 37

R v secretary of Stare for Education and employment, ex perte National Union of Teachers (2000)

Answer 37

High court judge ruled that a statutory instrument setting conditions for appraisal and access to higher rates of pay for teachers was beyond the powers given under the Education Act 1996.

Question 38

What can happen if statutory instruments conflict with European Union legalisation?

Answer 38

They can be declared void.

Question 39

Advantages of enabling act

Answer 39

Parliament sets limits

Parliament can amend or repeal act

Question 40

Disadvantage of enabling act

Answer 40

The powers in the act may be very wide

Question 41

Advantages of delegated powers scrutiny committee

Answer 41

Looks at proposed powers before they are enacted

Should ensure that only appropriate powers are given

Question 42

Disadvantage of delegated powers scrutiny committee

Answer 42

Can only report- cannot amend bill

Question 43

Advantages of affirmative resolution

Answer 43

Means parliament must agree with the regulations

Question 44

Disadvantages of affirmative resolution

Answer 44

Time consuming- cannot be used for all statutory instruments

Question 45

Advantages of negative resolution

Answer 45

Gives mps the opportunity to check statutory instruments before they come into force.

Question 46

Disadvantages of negative resolution

Answer 46

Unlikely that many statutory instruments will be looked at.

Question 47

Scrutiny committee advantages

Answer 47

Ensures:
Do not impose taxes or
Go beyond the powers
Are not retrospective 
Do not make unusual or unexpected use of powers
Are not unclear or defective

Question 48

Disadvantages of scrutiny committee

Answer 48

Only a technical check- cannot check substance of the statutory instruments
Committee can only report to parliament - it cannot make changes

Question 49

Advantage of judicial review doctrine of ultra vires

Answer 49

Anyone affected by the delegated legislation can ask for a judicial review.
Court can declare delegated legislation void.

Question 50

Disadvantage of judicial review doctrine of ultra vires

Answer 50

It is expensive to take court proceedings
Can normally only do this if the correct procedure has not been followed or if the delegated legislation goes beyond the power given by the enabling act

Question 51

Need for detailed law?

Answer 51

Using delegated legislation means the parliament has control, through the use of the Enabling Acts, of what regulations are passed.
At the same time use of delegated legislation means that other bodies do the rest of the work

Question 52

Need for expert knowledge

Answer 52

Many regulations need expert knowledge of the subject matter in order to draw up the most effective laws.
It is thought that it is better for parliament to debate the main principles thoroughly but leave the detail to be filled it by those who have expert knowledge

Question 53

Need for local knowledge

Answer 53

For local by laws the local councils know their own areas and can decide which areas need drinking bans and etc.
It would be impossible for parliament to know local requirement of every city

Question 54

Need for consultation

Answer 54

By creating law through delegated legislation ministers can have the benefit of consultation before having regulations drawn up.
Some enabling acts giving the power for delegated legislation set out that there must be consultation before the regulations are created

Question 55

An example of a need for consultation before becoming regulation?

Answer 55

Before any new or revised police code of practice under the police and criminal evidence act 1984 is issued there must be consultation with a wide range of people including the law society

Question 56

Advantage of delegated legislation (saves parliamentary time)

Answer 56

Parliament does not have time to consider and debate every small detail of complex regulations.
Making such regulations through delegated legislation saves parliamentary time

Question 57

Advantage of delegated legislation (allows quick law making)

Answer 57

Process of passing an act takes a considerable amount of time and in an emergency parliament may not be able to pas law quickly enough, orders in council, especially, can be made very quickly.

Question 58

Disadvantage of delegated legislation (sub delegation)

Answer 58

Means that the law making authority is handed down another level.
This causes comments that much of our law is made by civil servants and merely ‘rubber stamped’ by the minister of that department.