Delegated Legisaltion

Question 1

What is delegated legislation also called?

Answer 1

Secondary/ subordinate leg

Question 2

What is delegated legislation?

Answer 2

Law made by bodies other than P

Used to flesh out a piece of leg

Question 3

How does P delegate this power?

Answer 3

Enabling / parenting Act - creates framework of law

Delegates power to Min in charge/ G body

Question 4

Example of an enabling Act

Answer 4

Access to Justice Act 1999

Provided Lord Chancellor wth power to alter aspects of legal funding

Question 5

What are the 3 main types of delegated legislation?

Answer 5

1. Orders in Council
2. Statutory Instruments
3. Bylaws

Question 6

What do Orders in Council allow?

Answer 6

Allows G to pass emergency legislation in times of war
Approved by Privy Council, signed by Queen
Doesn’t need to go through P
Emergency Powers Act 1920
Also used to implement European Directives

Question 7

Give an example of when Orders in Council have been used to alter leg quickly?

Answer 7

Misuse of Drug Act 1971

Change cannabis form Class B to Class C

Question 8

Who does statutory instruments give authority to?

Answer 8

Ministers of G departments = given authority make leg for areas under their responsibility
e.g. Minister of transport altering transport regulations
Maj method of law making (3,000 statutes per yr)

Question 9

What is the Legislative and Regulatory Reform Act 2006

Answer 9

Statutory instrument

Allows Ministers to alter leg if helps reduce burden of leg

Question 10

Who are Bylaws released by?

Answer 10

Released by local authorities relating to issues in that area
Also made by private corporations
e.g. Water authority imposing hose pipe ban

Question 11

What are the 5 reason that we have delegates legislation?

Answer 11

1. Time (P don’t have time to debate every small detail, P = collapse, barely time to pass 70 Acts per yr)
2. Knowledge (P doesn’t have local knowledge; concerned with broad issues, whole country)
3. Flexibility (altered easily, avoid lengthy process)
4. Emergency (useful in times of emergency, war)
5. Future needs (can cater to future needs of ever changing society)

Question 12

What are the 4 ways that P controls delegated legislation?

Answer 12

1. Affirmative resolutions
2. Negative resolutions
3. Scrutiny committee
4. Super affirmative resolutions

Question 13

What is the affirmative resolution?

Answer 13

Stat instrument will not become law unless approved by P
Mentioned in parenting Act - new/ revised codes of practice (PACE) must be approved
P can’t amend it - accept/ reject
Small number of statutory instruments subjected to this

Question 14

What is the negative resolution?

Answer 14

Relevant piece of leg will become law unless rejected by P within 40 days

Question 15

What is the scrutiny committee?

Answer 15

Reviews all statutory instruments
Draws P attention to matters of concern
Concerned with whether leg remains within enabling Act
Has no power of amendment

Question 16

What is the super affirmative resolution?

Answer 16

New procedure

Ministers have to regard any concerns by any committee of either house

Question 17

What did the Hansard Committee in 1992 find?

Answer 17

Some critical findings of the scrutiny committee = ignored by the Ministers

Question 18

What found that the amendments of the scrutiny committee were largely ignored?

Answer 18

Hansard Committee 1992

Question 19

What can challenge delegated legislation?

Answer 19

Ultra Vires - if it goes beyond the power contained within the enabling Act
= void/ ineffective

Also be declared void if in conflict with EU leg

Question 20

What are the 3 forms of Ultra Vires?

Answer 20

1. Procedural ultra vires
2. Substantive ultra vires
3. Unreasonableness

Question 21

What is procedural ultra vires?

Answer 21

When procedure of enacting legislation hasn’t been followed
Interested parties must be consulted before it can be passed
Aylesbury Mushrooms case

Question 22

Aylesbury Mushrooms case

Answer 22

Training board failed to consult the Mushroom growers association about the changes to regulations
Regulations were held not to apply to them

Question 23

What is substantive ultra vires?

Answer 23

When the legislation goes beyond the powers laid down in the enabling Act

Commissioners of Customs and Excise v Cure and Deeley Ltd

Question 24

Commissioner of Customs and Excise v Cure and Deeley Ltd

Answer 24

Commissioner released leg stating that, had the power determine how much tax = due if tax term = submitted late
High Ct overturned this, stated they didn’t have this power

Question 25

What happens if a piece of legislation is declared unreasonable?

Answer 25

Can be overturned by Cts

Strictland v Hayes Borough Council

Question 26

Strictland v Hayes Borough Council

Answer 26

Prohibition of sining an obscene song or using bad language in public was against the law, considered unreasonable

Question 27

What are the 6 criticisms of delegated legislation?

Answer 27

1. Non-elected people make law
2. Inadequate control
3. Danger of sub delegation (accountability)
4. Large volume (difficult understand what law =)
5. Lack of awareness
6. Difficult to understand

Question 28

What are the 5 ways that delegated legislation inadequately controlled?

Answer 28

1. Lack of public awareness of existence
2. Ultra vires procedure, dependent on individuals brining case before court (££)
3. Affirmative resolution - not binding (Hansard Committee 1992)
4. Parameters set by Enabling Act can be very wide
5. Majority of statutory instruments are negative resolution - unless vote = law