Delegated Legislation Flashcards
What does Substantive ultra vires mean?
The secondary body has gone beyond the powers granted to it.
What does Procedural ultra vires mean?
The secondary body failed to follow the correct procedure in the enabling act.
What is delegated legislation?
when power to legislate is delegated by parliament to other bodies
What is an enabling act?
an act that creates the framework of the law and then delegates the power to others to make more detailed law in that area.
What are the 3 types of delegated legislation?
Orders in Council, Statutory Instruments, By-Laws
Who are ‘Orders In Council’ made by?
the monarch and Privy Council (made up of leading ministers and the Prime minister)
What do ‘Orders In Council’ do?
Allow the government to make laws without going through parliament
What is my example of an ‘Order in Council’ that amended or updated existing law?
in 2003, an Order in Council was used to alter the Misuse of Drugs Act 1971 to make cannabis a class c drug, 5 years later another Order in Council was issued changing it back to a class B.
Who makes ‘Statutory Instruments’?
Ministers and Government departments
What is a statutory instrument?
Regulations made by ministers for their particular area of responsibility. (eg minister of transport will deal with road traffic regulation)
What is my example of a statutory instrument?
The National Minimum Wage Act 1998 gives the power to a government minister to make annual updates to the minimum wage as required,
Who makes by-laws?
local authorities
What is a by-law?
legislation made by local authorities to only cover matters within their own area
What are the 2 types of by-laws?
Local by-laws and technical by-laws
Which act are most by-laws created under?
Local Government Act 1982
Five reasons for delegated legislation :
*detailed law
*expert knowledge
*local knowledge
*consultation
*speed
Explain this reason for delegated legislation : detailed law
*Parliament doesn’t have the time to deal with all the rules and regulations needed for society. *Using delegated legislation means that Parliament has overall control, through use of enabling acts, of what regulations are passed.
Explain this reason for delegated legislation : expert knowledge
It is more productive for Parliament to debate the main principles thoroughly, and leave the detail to those who have expert knowledge in that area. (eg. technology, environmental safety , industrial problems etc.)
Explain this reason for delegated legislation : local knowledge
For by-laws, local councils know their own areas and can decide which areas need different rules and regulations.
It would be impossible for Parliament to deal with all the local requirements for every city, town, and village in the country.
Explain this reason for delegated legislation : consultation
ensures legislation is technically accurate and workable.
Explain this reason for delegated legislation : speed
Delegated legislation can be passed quickly to deal with emergencies, (eg, when parliament is not sitting)
Five advantages of delegated legislation :
*Saves Parliamentary Time
*Access to technical expertise
*Allows consultation
*Allows quick law making
*Easy to amend
Explain this advantage of delegated legislation : saves Parliamentary time
Parliament passes about 30-40 acts a year. 3000 Statutory instruments are made annually. Parliament does not have the time to debate every small detail of complex regulations. DL allows Parliament to focus on major issues and broader policies.
Explain this advantage of delegated legislation : access to technical expertise
Allows technical maters to be dealt with by legally qualified experts. Experts can be consulted for specific or complex detail, usually to fill in the gaps of primary legislation.
Explain this advantage of delegated legislation : allows consultation
This brings in expertise and public opinion. Consultation is specifically important on technical matters. where it is necessary to make sure that the regulations are technically workable. (eg. road traffic laws will benefit from consultation from : the police, motoring organisations who can reflect views of motorists)
Explain this advantage of delegated legislation : Allows quick law making
The process of carrying out an Act of parliament takes a considerable amount of time and in an emergency Parliament may not be able to pass law quickly enough. (for example, the Dangerous Dogs Act 1991 was passed quickly because ministers wanted to appear to act quickly after a series of dog attacks)
Explain this advantage of delegated legislation : easy to amend
DL can be amended or revoked easily when necessary so that the law can be kept up to date. (for example the National Minimum Wage Act 1998 is changed annually)
What are 5 disadvantages of delegated legislation ?
*undemocratic
*sub-delegation
*large volume and lack of publicity
*difficult wording
*length and expense of judicial review
Explain this disadvantage of delegated legislation : undemocratic
DL takes law making away from the democratically elected House of Commons and allows non-elected people to make law.
Explain this disadvantage of delegated legislation : large volume and lack of publicity
Over 3000 statutory instruments are made annually. It is difficult to learn about new delegated legislation as there is not much interest in it. This is because delegated legislation is made in private and passed through parliament without debate, in contrast to the public debates of primary legislation.
Explain this disadvantage of delegated legislation : difficult wording
They use complex and obscure wording that can lead to difficulty in understanding what the law means.
Explain this disadvantage of delegated legislation : length and expense of judicial review
No legal aid is available for this procedure and a person must have sufficient standing or interest before a case can be launched.
What are the four ways Parliament control delegated legislation :
*enabling act
*resolution procedures for statutory instruments
*scrutiny committees
*questioning of government ministers
Explain this Parliamentary control on delegated legislation : Enabling Act
The Enabling Act sets out the limits of all delegated legislation. Including: who can make it and whether they need to consult anyone before making the regulations.
Explain this Parliamentary control on delegated legislation : Resolution procedures for statutory instruments
There are 2 different types of resolutions : affirmative and negative. Affirmative being when the statutory instruments will not become law unless specifically approved by Parliament within a specific time (usually 28-40 days). A negative resolution is when the SI will not become law unless it is rejected by Parliament within 40 days.
Explain this Parliamentary control on delegated legislation : Scrutiny Committees
Parliament has a number of committees that scrutinise proposals for delegated legislation. They consider the lawful use of it and the impact.
Explain this Parliamentary control of delegated legislation : Questioning of government ministers
Individual ministers can be questioned by MPs in the House of Commons on the work of their departments. This can include questions about proposed or current delegated legislation.
Explain this control of delegated legislation by the courts : Substantive ultra vires
This means that the secondary body has gone beyond the powers granted to it. (beyond the enabling act)
What is a case example of ‘substantive ultra vires’?
Fire Brigades Union Case 1995 - Government minister lacked power to make changes to the Criminal Injuries Compensation Scheme.
What year was the Fire Brigades Union Case and what happened ?
1995 - Government minister lacked power to make changes to the Criminal Injuries Compensation Scheme.
What control by the courts was the Fire Brigades Union Case 1995?
Substantive ultra vires
Explain this control of delegated legislation by the courts : Procedural ultra vires
The secondary body failed to follow the correct procedure in the enabling act.
What is a case example of the court controlling delegated legislation through procedural ultra vires?
The Aylesbury Mushrooms Case 1972 - The Minister of Labour failed to consult Mushroom Growers’ Association (representing about 85% of mushroom growers) over establishing a new training board, this made the delegated legislation void.
What year was the Aylesbury Mushroom Case and what happened ?
1972 - The Minister of Labour failed to consult Mushroom Grower’s Association (representing about 85% of all mushroom growers) over establishing a new training board . This made the delegated legislation void.
What control by the courts is the Aylesbury Mushrooms Case an example of?
Procedural ultra vires
Explain this control of delegated legislation by the courts : unreasonable
Delegated legislation is so unreasonable that no reasonable authority could ever come to it.
What is a case example of delegated legislation being controlled by the courts due to being unreasonable ?
Wednesbury Case 1948 - Cinema was granted a licence to open on Sundays subject to the condition that ‘no children under 15 shall be admitted whether accompanied by an adult or not’ This was declared void.
What year did the Wednesbury Case happen and what happened ?
1948 - Cinema was granted a licence to open on Sundays subject to the condition that ‘no children under 15 shall be admitted whether accompanied by an adult or not’ This was declared void.
What control of delegated legislation by the courts is the Wednesbury Case 1948?
Unreasonable
