DELEGATED LEGISLATION

Question 1

What is delegated Legislation?

Answer 1

Legislation which Parliament has given powers through a Parent/Enabling Act to another person/body to create it.

Question 2

What are the three main types of delegated legislation?

Answer 2

Orders in council, Statutory Instruments and By-laws.

Question 3

What is Orders in Council?

Answer 3

They are made by the Queen and Privy Council. Laws can be created quickly in emergencies and can be created even when Parliament isn’t sitting. They are used in emergencies, to amend or update laws.

Question 4

What is an example of a Order in Council.

Answer 4

An example was Libya (Financial Sanctions) Order 2011 made to allow states to freeze assets belonging to Libyan officials and it was made under United Nations Act 1941.

Question 5

What are the advantages of a Order in Council?

Answer 5

1. Laws can be implemented quickly.
2. Laws are made democratically (as still under an Act of Parliament) so fairness and the importance of democracy is still kept.

Question 6

What are Statutory Instruments?

Answer 6

They are made by (Government) Ministers, detailed orders, rules or regulations. (Make up majority of secondary legislation) Aim to provide detail that would be too complex to add into the body of an Act. Each Minister will be responsible and in their responsibility. Appropriate department will make them. Can be long or short.

Question 7

What is an example of a Statutory Instrument?

Answer 7

Police Codes of Practice which was made my the Minister for Justice under the powers granted by the Police and Criminal Evidence Act 1984.

Question 8

What are Legislative Reform Orders?

Answer 8

The Legislative and Regulatory Reform Act 2006 gives Ministers power to make any provision to remove, reduce a burden resulting from legislation. LRO (give Minster power to change Acts even if original act does not give power- strict measure) are SI to remove the burdens directly/ indirectly resulting from legislation when it could impose financial cost, or an obstacle to efficiency…

Question 9

What are By-laws?

Answer 9

Laws made by local authorities and Public bodies which cover matters of local concern like dog fouling, parking restrictions and consumption of alcohol outdoors. Public corporations and certain companies can also make them in matters within their jurisdiction like Railway Companies on fines for trespass/ invalid tickets. Need to be approved by relevant Gov Minister.

Question 10

What is an example of a By-law?

Answer 10

Section 235 of the Local Governments Act 1972 allows local authorities to create By-laws. Section 236- must be made under seal of local authority, must be advertised in local press least 1 month prior to confirmation and must be confirmed by appropriate Minister and made available for local inspection.

Question 11

What are Professional regulations?

Answer 11

Another type of delegated legislation. Professional regulations such as those under the Solicitors Act 1974 which allows Law Society to regulate conduct of its member.

Question 12

Negative Resolution Procedure (SI ONLY)

Answer 12

A SI will be made law on the date started on it but if the HOC (financial matters) or HOL passes a motion to for annulment it will be stopped. They usually have to do this within 40 days of implementation.

Question 13

Affirmative Resolution Procedure (SI ONLY)

Answer 13

Parliament must approve the law before it is implemented. E.g. Police and Criminal Evidence Act 1984- new and revised Police codes of practice must have approval from Parliament before implemented.

Question 14

Super Affirmative Resolution Procedure (SI ONLY)

Answer 14

If the SI contains controversial material and Parliaments input is needed this will be used.

Must be used under Digital Economy Act 2010 and Legislative and Regulatory Reform Act 2006.

After laying of Bill/Order by Minister 60 day period must follow. Relevant Parliamentary Committees may report on draft or House make a resolution. Minister must be aware (and any representatives).

After he choses to go ahead no changes he must make a statement corresponding to Subsection 3 and make order terms of draft approved by resolution (both C and L).

Question 15

What is the Standing Committee?

Answer 15

The Commons consider most SI’s that require affirmative resolution and some that require negative. Si’s that require affirmative are automatically given to the Committee (unless house requests differently) (under provisions adopted in 1994).

Question 16

What is the Joint Committee (Scrutiny Committee)?

Answer 16

Contains members from both houses. Reviews an SI and check if they need the attention of Parliament for special consideration.

Also, if Minister has used powers correctly- in accordance to provisions in Enabling Act not the merits.

The legality of proposals and technical matters.

Question 17

What is the House of Lords Select Committee on the Merits of Statutory Instruments?

Answer 17

They examine the SI and consider the merits of it to see if there are any policy implications.

Draw to the special attention to the House and see if any SI that was laid previous week if it is in any way legally or politically important or inappropriate in any changed circumstances after the Parent Act was passed.

Review on merits.

Question 18

What are extra Parliamentary controls?

Answer 18

1. The Enabling Act sets the limitations within which delegated legislation must be made like which Government Minister can make the set of regulations it allows.
2. Sometimes Act requires those granted power to consult with relevant experts and those likely to be affected.
3. All delegated legislation must be published and therefore available for public scrutiny. Under Statutory Instruments Act 1946.

Question 19

What is Procedural Ultra Vires?

JUDICIAL CONTROL

Answer 19

Where the individual or body has not followed a procedure/requirement laid down by the Enabling Act.

Question 20

What is a case example of Procedural Ultra Vires?

Answer 20

Agricultural Training Board v Aylesbury Mushrooms [1972]
The Minister of Labor was required to consult any organization representing a large number of employers who would be effected involved in the ‘activity concerned’.

Did not consult Mushroom Growers Association (big representative) - meant that setting up training board was invalid as against interests of mushroom growers generally.

Question 21

What is Substantive Ultra Vires?

JUDICIAL CONTROL

Answer 21

Where the individual or body has used authorized power in an unauthorized way.

Question 22

What is a case example of Substantive Ultra Vires?

Answer 22

R v Home Secretary, ex parte Fire Brigades Union [1995}
Home Secretary made changes to Criminal Injuries Compensation Scheme.

Power not permitted by Criminal Justice Act 1988 so changes deemed invalid.

Question 23

What is Unreasonableness?

JUDICIAL CONTROL

Answer 23

Where the individual or body has made a decision which no reasonable body or individual would make in the same situation. So the Court deem the legislation unreasonable and void.

Question 24

What is a case example of Unreasonableness?

Answer 24

Associated Picture Houses v Wednesbury Corporation [1948]
Local authority placed a restriction on cinema’s- under 15’s could not attend on Sundays opening, not permitted.

Ruled invalid as no reasonable authority would have decided/enacted this.

Question 25

What is Inconsistency with Human Rights?

Answer 25

Where the individual or body has made a decision which breaches an individuals human rights- the Court deems the legislation void.

Question 26

What is a case example of Inconsistency with Human Rights?

Answer 26

R (Bono) v Harlow District Council [2002]
Defendants denied fair trial under Article 6 of the European Convention on Human Rights.

Due to committee who heard the appeal (about housing benefit) were found to be biased.

The appeal committee ruling was found invalid by Court.

Question 27

Advantages of delegated legislation.

Answer 27

1. Saves Parliamentary time.
2. Expert Knowledge.
3. Local Knowledge.
4. Speed and Flexibility- (can be changed, allows for experimentation and power for constant adaptation stops amending of legislation as a lot can be adapted).
5. Easy to amend (easily revoked if causes problems- Act would have to have another statute/ revoked which would take longer than delegated).

Question 28

Disadvantages of delegated legislation.

Answer 28

1. Undemocratic (unelected bodies).
2. Hidden (not known to majority of public and ignorance of law is not a defense e.g. Charlie Allison).
3. Uncontrolled (controls are often ineffective and few SI get affirmative and MP’s are too busy to look at others/ powers of Scrutiny committee and limited (not merits) only correctly used powers and its reports are not binding. Also, judicial controls can only be used once a issue has been brought up (case) by someone effected- could be decades).