delegated legislation

Question 1

What allows a secondary body to create laws?

Answer 1

An Enabling Act or Parent Act. (same thing)

Question 2

How many Acts does Parliament pass a year?

Answer 2

25-40

Question 3

Who makes Orders in Council?

Answer 3

The Queen and Privy Council. The Privy Council includes senior government ministers, senior judges, bishops and senior members of the royal family.

Question 4

When are Orders in Council used?

Answer 4

Can be used in times or emergency or when Parliament is not sitting.

Question 5

What are Orders in Council used for?

Answer 5

To amend or update laws, transfer responsibility between government departments or to make law in times of emergency.

Question 6

What did the Misuse of Drugs Amendment Order 2008 do and what type of delegated legislation was it?

Answer 6

It was an Order in Council and it amended the Misuse of Drugs Act to reclassify cannabis as a class B drug when it was previously a class C.

Question 7

Who makes by-laws and where do they apply?

Answer 7

Local authorities and large public bodies authorised to do so. The legislation only applies to the areas over which that council or public body has control.

Question 8

Give some examples of issues dealt with by by-laws and an example of an actual by-law.

Answer 8

Traffic regulations, parking, dog fouling in parks, public order (like alcohol ban zones).
Smoking ban on the London Underground.

Question 9

Who makes Statutory Instruments and what can they make Statutory Instruments about?

Answer 9

Government departments (civil servants) and ministers. They can only make Statutory Instruments for their area of responsibility.

Question 10

How many Statutory instruments are made a year?

Answer 10

Around 3000

Question 11

What is an example of a Statutory Instrument and the relevant Enabling Act?

Answer 11

The Police Codes of Practice which can be made by the Minister of Justice. This is enabled by the Police and Criminal Evidence Act 1984.

Question 12

What are the reasons for delegated legalisation?

Answer 12

• Time
• Expertise
• Local knowledge
• Easily make and change laws

Question 13

Why is time a reason for delegated legislation?

Answer 13

Parliament doesn’t have the time to make all the legislation needed by the country and specific regions as the Parliamentary law making process is very long and time consuming. It takes a long time to go from Green Paper to White Paper and through the various stages in both Houses and finally gaining Royal Assent. Technical and detailed laws can be made quickly by others. Parliament makes around 25 laws a year compared to 3000 Statutory Instruments made a year.

Question 14

Why is expertise a reason for delegated legislation?

Answer 14

Rules need subject knowledge and Parliament doesn’t know everything and may not have specialists in that area of law. Parliament will debate the principles and leave the details to the experts. For example PACE Act 1984 sets out general principles but the Police Code of Practice has all the fine detail. Usually the civil servants in departments have the specialist knowledge and so come up with the details.

Question 15

Why is local knowledge a reason for delegated legislation?

Answer 15

Parliament won’t know every area of the country thoroughly. Local authorities will be aware of what is needed. For example, dog fouling in parks and no smoking on the London Underground.

Question 16

Why is the ability to easily make and change laws a reason for delegated legislation?

Answer 16

Statutory Instruments and Orders in Council can be made and changed quickly. They can deal with emergencies and can respond to changing circumstances. For example shutting airports during the 9/11 attack as well as Covid rules and dealing with the foot and mouth disease outbreak in cattle and banning the materials used in the Grenfell fire.

Question 17

What is the only Parliamentary control that applies to Orders in Council and By-laws (it also applies to Statutory Instruments)?

Answer 17

The Enabling Act. Parliament chooses what powers to delegate in the Enabling Act and can decided which Government ministers to give powers to. It can specify who they need to consult or how they make delegated law. It also specifies where the delegated legislation applies. Parliament can repeal the Enabling Act at any time which instantly removes the power of the delegated body to make law. For example the Police and Criminal Evidence Act 1984.

Question 18

What must all Statutory Instruments go through?

Answer 18

Either negative or affirmative resolutions.

Question 19

What happens in the negative resolution procedure?

Answer 19

It is the most common procedure where the Statutory Instrument is proposed and will become law unless rejected by Parliament within 40 days. There is no debate on the issue.

Question 20

What happens in the affirmative resolution procedure?

Answer 20

A debate will follow the introduction and both Houses of Parliament must expressly approve the Statutory Instrument before it can be enacted. However Parliament can’t amend the SI, only approve or withdraw/annul it. For example changes to the the police code must be approved before they come into force.

Question 21

What does the questioning of government ministers entail?

Answer 21

The minister introducing the instrument can be questioned on it. They can be questioned on current as well as proposed instruments.

Question 22

What does the Scrutiny Committee review?

Answer 22

All Statutory Instruments.

Question 23

What can the Scrutiny Committee do?

Answer 23

Draw the attention of both Houses of Parliament to any SIs which need further consideration. However they can’t alter any SI, only refer the problem to Parliament.

Question 24

Why might the Scrutiny Committee refer a Statutory Instrument back to Parliament?

Answer 24

• SI imposes a charge or levy (SIs can’t do this)
• SI applies retrospectively (always banned in Enabling Acts)
• SI exceeds powers given in the Enabling Act
• SI makes unexpected or unusual use of power
• SI is unclear or defective in some way

Question 25

Why can’t an Enabling Act be challenged in judicial review?

Answer 25

Because it was made by Parliament and Parliament is supreme.

Question 26

Who can challenge delegated legislation?

Answer 26

Someone with standing or interest in the case- they have ‘locus standi’.

Question 27

What are the 3 situations in which the court (it will be the Queen’s Bench Division that hears these cases) can declare that the delegated legalisation is ‘ultra vires’ (meaning void)?

Answer 27

- Substantive ultra vires- the DL goes beyond the powers given in the Enabling Act - Procedural ultra vires- the DL didn’t follow the correct procedure when being made - Wednesbury unreasonableness- a decision made under DL is unreasonable

Question 28

Which case is an example of substantive ultra vires?

Answer 28

R v Home Secretary ex parte Fire Brigades Union. Under the Criminal Justice Act 1988, the Home Secretary was allowed to decide the date to introduce the Criminal Injury Compensation Scheme. He actually changed the scheme by reducing the amount of compensation owed as well as deciding the date to introduce it. The court decided that he had gone beyond the powers given to him in the Enabling Act and so his changes to the scheme didn’t apply.

Question 29

Which case is an example of procedural ultra vires?

Answer 29

Agricultural training board v Aylesbury Mushrooms. The Minister of Labour tried to introduce new regulations for the training of mushroom growers and was required to consult ‘any group representative of substantial employees engaging in the activity concerned’. He didn’t consult the Mushroom Growers Association which represented 85% of all mushroom growers in the UK so the court decided he didn’t follow the correct procedure and so his regulations were void.

Question 30

Which case is an example of Wednesbury unreasonableness?

Answer 30

R (Rogers) v Swindon NHS Trust. Miss Rogers had breast cancer and needed the drug Herceptin. It was not yet approved and her NHS trust said that women with breast cancer could only get funding for this drug in exceptional circumstances, and her case was not exceptional. The court said it was unreasonable to draw a distinction between women with breast cancer if their medical needs were the same and so this rule became void.

Question 31

How effective is the Enabling Act as a Parliamentary control of delegated legalisation?

Answer 31

Effective because Parliament chooses who to give power to and any rules they have to follow when making DL. They can also repeal the Enabling Act at any time. Not effective because DL sometimes goes beyond the powers given in the Enabling Act and so judicial controls are needed too.

Question 32

How effective are negative resolutions as a Parliamentary control of delegated legalisation?

Answer 32

Effective because it is a very simple process that doesn’t waste anyone’s time due to the law automatically passing if nothing happens for 40 days. Not effective because so many SIs are made a year (3000) that a bad piece of law could slip through the gap without Parliament noticing it for 40 days.

Question 33

How effective are affirmative resolutions as a Parliamentary control of delegated legalisation?

Answer 33

Effective because DL has to be specifically approved by Parliament and so bad laws should be picked up on. Not effective because it takes up Parliament’s time which defeats the point of delegating and Parliament can’t amend the DL, only approve or reject it.

Question 34

How effective is the Scrutiny Committee as a Parliamentary control of delegated legalisation?

Answer 34

Effective because they can try to catch bad bits of law that Parliament would miss due to the large volume of DL created. Not effective because they can only refer the law to Parliament, not do anything about it themselves. They may not have specialist knowledge so may not know if the law is problematic anyway.

Question 35

How effective are judicial controls (judicial review) of delegated legalisation?

Answer 35

Effective because there are numerous ways to prove that DL is ultra vires and the court can hear from expert witnesses to testify about any specialist matters to work out if the law should be void. Not effective because only someone with standing is able to bring the case so not just anyone can sue. This person may be going up against a public body who will have more resources and money so the odds of winning the case are low. The court can’t change the DL, only make it void.

Question 36

What are the advantages of DL?

Answer 36

- Saves Parliament’s time as it takes an average of 1 to 2 years to pass an Act in Parliament so delegating allows them to spend time on more important issues like financial budgets and Brexit. - Specialist knowledge as complicated laws can be made more effectively by government ministers and civil servants who have expert knowledge. - Local knowledge which local councils have but Parliament often doesn’t meaning the law can be made by people who know the local area and know what it needed. - Numerous controls like the Scrutiny Committee and judicial review which means the law works in the way that Parliament intended.

Question 37

Which cases are good examples for the advantages of DL?

Answer 37

Time- Health and Safety at Work Act 1974 allowed the Minister of Work and Pensions to make regulations for all types of work like the Mining Regulations 2014. Specialist knowledge- PACE 1984 allows the Minister of Justice to set the Police Codes of Practice. Local knowledge- setting up alcohol free zones in areas with excessive drinking or crime. Numerous controls- correct procedure not being followed in ATB v Aylesbury Mushrooms so the law was declared ultra vires.

Question 38

What are the disadvantages of DL?

Answer 38

- Undemocratic as Privy Council contains non-elected judges and bishops and SIs are often made by civil servants. This means important laws may not represent what the public wants. - Large volume of DL as over 3000 SIs and several thousand by-laws are made each year often with little publicity so it is impossible for the average person to be aware of all these laws. - DL can be long and complex and often require judges to interpret the wording to fully understand them so it is hard for the public to understand how the law applies. - Controls aren’t always effective as the Scrutiny Committee can only refer problems to Parliament and hope they change them and few judicial reviews are successful. This means there is still bad law that isn’t being resolved properly.

Question 39

Which cases are good examples for the disadvantages of DL?

Answer 39

Undemocratic- SI passed in 2012 by Minister of Justice that restircted the rights of immigrants to get legal aid which was found ultra vires in court and not representative of public opinion. Large volume- British Airports Authority passed a by-law banning passengers taking tennis racquets on flights and a man was fined for doing this even though he was unaware he was doing anything wrong. Complex- R (Rogers) v Swindon NHS Trust where the case involved technical rules and specific drugs and the court had to decide what was ‘exceptional’ in relation to medical needs. Ineffective controls- in 2008, nearly 3600 judicial reviews were requested but only 184 cases went ahead and the government lost 40% of these.