Delegated Legislation

Question 1

Delegated Legislation

Answer 1

Primary source of law in this country

Purely practical bc Parliament have limited time, so detailed rules are drawn up by another body who may be experienced in that issue.

3 reasons why DL is needed
- An emergency
- New law for specific area
- New law on a technical matter; eg health

Question 2

ENABLING ACT

Answer 2

• Parliament gives authority for others to make laws, provides a broad framework as to what they want the new law to be about, others fill in details.

Question 3

Types of DL

Answer 3

1) Statutory instruments or regulations
2) Orders in council
3) Bylaws of local authorities
3a) Bylaws of other authorities

Question 4

Statutory Instruments or regulations

Answer 4

• Rules or regulations for area of government the government ministers are responsible for
  1) Minister for Transport deals with road traffic regulations RTA
  2) Education act amended by Education Minister

Question 5

Orders in council

Answer 5

• Drafted by government and given formal approval by King and PRIVY COUNCIL usually in time of national emergency when Parliament isn’t sitting
• enabling act that give King & Privy council authority to make laws is EMERGENCY POWERS ACT 1920 & CIVIL CONTINGENCIES ACT 2004

EXAMPLES
1) Misuse of Drugs Act 1971 to make weed a class C
2) Transferring responsibilities between government departments
3) Made funding terrorist illegal after 9/11 - UN ACT

Question 6

Bylaws of local authorities

Answer 6

• LOCAL GOVERNMENT ACT 1972
  Dog fouling illegal - CLEAN NEIGHBOURHOOD & ENVIRONMENT ACT 2005.

Question 7

Bylaws of other authorities

Answer 7

Public bodies and some companies can make laws within their area which affect the public.
- RAILWAY ACT 1933; Railway companies issue by-plans of behaviour of public on their trains.

Question 8

Controls of Delegated Legislation

Answer 8

1) Control by Parliament (Statutory Instruments)
2) Control by the Court (UV RULE)

Question 9

Control by Parliament
- 3 Statutory instruments

Answer 9

Power to make DL must be governed by an EA passed by P so P is in broad control, also maintain control through PARLIAMENTARY SOVEREIGNTY which means they can at any time revoke a piece of DL or pass legislation on the same subject as DL which would contradict it.
Parliament can write any of the following into the enabling act as a method of control:

1) AFFIRMATIVE RESOLUTION PROCEDURE

2) NEG RESOLUTION PROCEDURE

3) SCRUTINY COMMITEE

Question 10

AFFIRMATIVE RESOLUTION PROCEDURE

Answer 10

AFFIRMATIVE RESOLUTION PROCEDURE
- SI not law until parliament vote & say YES; 28-40 days
(Parliament can only approve or withdraw, CANT ALTER)

Question 11

NEGATIVE RESOLUTION PROCEDURE

Answer 11

NEGATIVE RESOLUTION PROCEDURE
- Many SI’s subject to this so DL will become law unless rejected by P within 40 days
(No requirement for MPs to look at legislation, so only a few are seen)

Question 12

SCRUTINY COMMITTEE

Answer 12

SCRUTINY COMMITTEE
- Members of both houses, review all SIs and refer them back to P if they:
> Go beyond power given to them in EA
> Not been made according to method stipulated in EA
> Unclear
(Can’t alter a statutory instrument)

Question 13

Control By the Court (KBD)

Answer 13

To question DL in court you must personally be affected by DL and must take action within 3 months of it becoming law.
DL can be challenged by the court and were necessary declared ULTRA VIRES (beyond the power)
Any DL declared ULTRA VIRES is VOID & INEFFECTIVE

Question 14

3 approaches to the UV rule as regards DL:

Answer 14

1) SUBSTANTIVE ULTRA VIRES
- Minister has exceeded power given to him - R V HOMES SECRETARY

2) PROCEDURAL ULTRA VIRES
- Minister has failed to follow some procedure specified - AYLESBURY MUSHROOMS

3) UNREASONABLE REGULATIONS
- established in WEDNESBURY CORRUPTIONS CASE commonly known as ‘wednesbury unreasonableness’

Question 15

Effectiveness / Problems of Judicial Controls

Answer 15

> Publication is limited so people don’t know about the DL

> Individuals may not realise they can challenge the DL

> Judicial review process is expensive

> The DL has got to affect individual before they can challenge it in court, and the challenge has to be within 3 months of the publication of DL

> Even when faced with opportunity to review DL, judges can only declare it void not amend it

Question 16

Advantages of DL

Answer 16

> Parliament doesn’t necessarily have specialist knowledge, local councils may have more knowledge.

> Democratic to extent, government ministers issue SI and approve bylaws elected, local councils responsible for making bylaws be elected.

> Emergency situations, OIC made after 9/11 under the UN ACT.

Question 17

Disadvantages of the DL

Answer 17

> Partly undemocratic bc law is taken away from democratically elected House of Commons and allows non-elected people to make law.

> Lack of proper control, not all SI are subject to neg/affirmative resolution and neg may be overlooked, Judicial controls dependant on citizens challenging law but doesn’t happen bc of lack of knowledge, resources and finance.

> DL is insufficiently published, bc its not debated by Parliament not the same opportunity for public awareness so massive volumes of law being passed without the public knowing about it.