Delegated legislation

Question 1

What are the three types of delegate legislation and who creates them?

Answer 1

Orders in council- Privy council
Bylaws- local government bodies.
Statutory instruments- ministers and government departments

Question 2

Give examples of each kind of DL

Answer 2

Bylaws- Transport Act.
Statutory instrument: national minimum wage Act 1998
Orders in council: Emergency powers Act 1920

Question 3

What is the need for delegated legislation?

Answer 3

• relieves pressure from parliament
• Can be used in emergency situations (Orders in council)
• Quick and easy to amend.
• Allows for specific technical knowledge

Question 4

Describe the Parliamentary controls of DL

Answer 4

Enabling Act- created by Parliament setting out who can make the law, what they can make, who they can consult, limitations etc.
DPSC: review Bills created by delegates and considers whether their powers have been used correctly. however they themselves do not have any power.
Affirmative resolutions- ONLY apply to statutory instruments, where a SI will only become law if approved by Parliament.
Negative resolutions- the relevant SI will become law unless rejected by Parliament within 40 days.
Scrutiny committee: Technical review of SI’s, consider unusual or unexpected powers, unclear or defective etc. However again can only report their findings.

Question 5

Court controls of delegated legislation

Answer 5

• ultra vires: legislation goes beyond the powers that parliament granted in the enabling act (r v secretary ex p-rte fire brigades union)
• Procedural ultra vires: where incorrect procedure was followed (aylesbury mushroom case)
• Substantive ultra vires: the delegated legislation is declared void due to exceeding the limits in the parent act
• unreasonableness- delegated legislation can be considered void if it is so unreasonable (rogers v swindon NHS trust

Question 6

Advantages of delegated legislation

Answer 6

• relives parliamentary pressure
• allows for local knowledge
• enabling act sets the boundaries
• saves time

Question 7

Disadvantages of delegated legislation

Answer 7

• the power can be sub-delegated and then abused
• un-democratic
• ## misinterpretation

Question 8

Effectiveness of the court controls of delegated legislation

Answer 8

• the courst have little control as judicial review relies on someone bringing about a claim
• Judicial review is rarely funded by legal aid and requires individuals to pursue the case
• judicial review, parliament usually follows the courts ruling

Question 9

Effectiveness of the parliamentary controls

Answer 9

• Parliament has ultimate control : enabling act and parliamentary sovereignty
• Parliament only delegates power to trusted bodies with clear limitations
• affirmative resolution gives parliament mode control but is rarely used
• negative resolution offers little practical control
• the scrutiny committees have no power they can only refer issues