Controls on Delegated Legislation

Question 1

what is parliamentary control

Answer 1

applies to parliament- checking the laws before they have been passed and deciding if they should be approved or not.

Question 2

what is judicial control

Answer 2

This applies to the Courts.
The Courts control delegated legislation by investigating the laws after they have been passed. Issues need to be reported to them through Judicial Review.
A law can be declared void if it is ultra vires (beyond the power) of the body who has tried to introduce the law

Question 3

what are the 4 Parliamentary Control

Answer 3

1)parent act
2)positive resolution
3)negative resolution
4)scrutiny committtee

Question 4

what is the parent act
clue- control

Answer 4

Includes the rules on who can make laws, what they can make laws on, who needs to be consulted, and if positive or negative resolution is needed. Can be repealed/amended to take away power

Question 5

what is the positive resolution
clue- double checking

Answer 5

Parliament must check and sign off on the law before it can come into effect. This happened with the Dangerous Dogs Act 1991.

Question 6

what is negative resolution
clue- 40 days before

Answer 6

The law must be ‘laid before Parliament’ (e.g. made public) for 40 days and not be objected to before it can become law. It was used with the Gaming Act 1968.

Question 7

what is the scrutiny committee

Answer 7

reviews all Statutory Instruments and refers them to Parliament for review if they impose a tax, are retrospective, go beyond the powers granted, or are unclear/defective

Question 8

what are the three types of ultra vires orders the courts can make

Answer 8

PROCEDURAL ULTRA VIRES
SUBSTANTIVE ULTRA VIRES
WEDNESBURY UNREASONABLENESS

Question 9

what does procedural ultra vires mean
example: Aylesbury mushrooms (1972)

Answer 9

The correct procedure was not followed when the law was made. Seen in Aylesbury Mushrooms 1972-
The minister of labour had to consult before writing regulations about mushroom growing. He failed to consult the mushroom growers association (one of the main bodies) and as such the regulations were invalid.

Question 10

what does substantive ultra vires mean
case- AG v Fulham Corp 1921
clue: washing clothes

Answer 10

The substance of the law was not what the body was allowed to do. Seen in AG v Fulham Corp 1921- The council was empowered to set up wash houses for residents to do their laundry. It decided to also run a paid-for laundry service which they werent meant to have to pay

Question 11

what does WEDNESBURY UNREASONABLENESS
mean
APPH v Wednesbury Corporation 1948- cinema

Answer 11

The law passed was so unreasonable that no reasonable person could think of it and is therefore wrong. Seen in APPH v Wednesbury Corporation 1948- operate a cinema, on condition that no children under 15, whether accompanied by an adult or not, were admitted on Sundays. Wednesbury’s condition was unacceptable and outside the power of the corporation to impose.

Question 12

effectiveness of the parent act and explination of the local gov act 1972

Answer 12

Is an effective control as it lays out the original rules on when the law can be passed, on what, and by whom. It can also be repealed to take the power away from the body if it is not used correctly. E.g. Local Government Act 1972 - UK law that regulates the organization and functions of local government areas and authorities in England and Wales.

Question 13

extra point for the parent act

Answer 13

However, the wording could be manipulated by bodies wishing to have more power than they are given

Question 14

effectiveness of the positive resolution and dangerous dogs act involvement

Answer 14

Is effective because it ensures that every law is checked by Parliament before it comes into effect. Prevents abuse of power and deters bodies from trying to abuse it too. E.g. Dangerous Dogs Act 1991 Home Secretary had to have approval to add breeds to the list.

Question 15

extra for positive resolution

Answer 15

However this is used rarely so deterrence not as effective.

Question 16

effectiveness of the negative resolution- what does the gaming act 1968 have to do with this

Answer 16

Is less effective because they often go unchecked and become law regardless of whether they may have issues. Gives delegated bodies opportunity to have a law ‘slip through the net’. E.g. Gaming Act 1968 Gambling Commission rules use this.

Question 17

extra for negative resolution

Answer 17

However, they do save time for Parliament.

Question 18

effectiveness of judicial controls

Answer 18

They are only effective when a case is brought before court, which means someone has challenged the legislation through judicial review. If nobody challenges the law, it cannot be brought before the court. E.g. is nobody challenged the law in Aylesbury Mushrooms 1972 it would have still applied to Mushroom Growers.

Question 19

extra for judicial controls

Answer 19

However when cases do reach court they are able to declare law void so are very effective then.

Question 20

evaluation on controls of delegated legislation- positives

Answer 20

1)Saves time for Parliament
2)Local Knowledge used
3)Allows laws to be passed quickly in emergencies
4)Expert knowledge used

Question 21

Saves time for Parliament
development w/ e.g- covid

Answer 21

Parliament has more time for tasks which may be more urgent. e.g. dealing with Coronavirus nationally whilst local governments look at local lockdowns

Question 22

extra for saves time for parliament

Answer 22

However some issues are too important to be delegated even if it does save time

Question 23

Local Knowledge used
development w/ e.g- local

Answer 23

Local governments have a clearer idea on what is needed in their local area. e.g. Parking restrictions in Wolverhampton on matchday (Local Government Act 1972)

Question 24

local knowledge extra

Answer 24

However Parliament needs to retain some control so local groups don’t exceed powers

Question 25

expert knowledge used development w/ e.g - popo

Answer 25

Those working in government depts have more expertise on complicated topics such as tax law. Home Department has better idea on police practices (PACE 1984)

Question 26

expert knowledge used extra

Answer 26

However the work of these departments should still be checked by Parliament

Question 27

Allows laws to be passed quickly in emergencies
development w/ e.g - bank accounts 2001

Answer 27

Parliament takes months to introduce a new law through the legislative process – whereas SI’s and OIC’s can take only hours. Such as law freezing bank accounts of suspected terrorists following 9/11

Question 28

allows laws to be passed quicky in emergencies extra

Answer 28

However rushed laws can lead to errors and this can have a negative impact on the quality of the laws being passed

Question 29

negatives of controls on delegated legislation

Answer 29

1)Undemocratic
2)Hard to track and monitor
3)Lack of public awareness
4)sub-delegation

Question 30

Undemocratic
dev w/ e.g (not a case)

Answer 30

Parliament is passing power down to other bodies which means that those elected to make laws are no longer in charge of doing so. E.g. Privy Council and Orders in Council made by Royal Family/ex-leaders/judges/bishops

Question 31

Hard to track and monitor
dev

Answer 31

The huge volume of statutory instruments passed (over 3,000) and bylaws around all towns and cities in addition make it hard for Parliament to keep control over all delegated legislation that is passed.

Question 32

Hard to track and monitor extra

Answer 32

If it is impossible to track the laws, it would be even harder to have time to pass these laws

Question 33

Lack of public awareness
dev

Answer 33

Due to the large volume of legislation that is passed each year through different forms of delegated legislation and the lack of publication when each new law is passed, it can mean that the public are unaware of what laws they should be following – which is against the rule of law

Question 34

lack of public awareness extra - in addition

Answer 34

In addition, the lack of media coverage for delegated legislation as opposed to national laws makes it even harder to follow

Question 35

Sub-delegation
dev w/ e.g … passing jobs

Answer 35

This is the risk that the powers to make laws might be delegated further, so that the law is not actually written by the person given the power but instead is written by someone else and ‘rubber-stamped’ – e.g. written by civil servants in government departments and signed off by the government minister without due care

Question 36

sub- delegation extra - in addition

Answer 36

This then makes the process even less democratic as civil servants are not elected by the people