Delegated legislation

Question 1

What is delegated legislation?

Answer 1

A secondary legislation and a law made by some other person or body other than parliament, but has the authority of parliament.

Question 2

What are the 5 reasons for delegated legislation? (the importance of it)

Answer 2

-Saves time
-Deals with complex issues
-Quick to amend/flexibility
-Allows a fast legislative response
-Allows for local needs and concerns to be met

Question 3

What are the Act(s) that give the authority of delegated legislation?

Answer 3

The Parent/Enabling Act

Question 4

What is the Parent/Enabling Act?

Answer 4

The authority of parliament for law to be made by a body other than parliament - is usually laid down in a ‘parent’ act known as the Enabling Act.

Question 5

What are the three types of DL?

Answer 5

-Bylaws
-Orders in council
-Statutory instruments

Question 6

What are Bylaws and who makes them?

Answer 6

Bylaws are used to deal with local issues and is made by Local Government

Question 7

What effect do Bylaws have?

Answer 7

Local effect

Question 8

Give an example of a Bylaw:

Answer 8

British Airports Authority

Question 9

When are orders in council used and who makes them?

Answer 9

They are often used in an emergency or when parliament aren’t sitting and are made by the privy council and the king

Question 10

What effect does orders in council have?

Answer 10

National and local effect

Question 11

What matters are orders in court used for?

Answer 11

-Giving effect to European Directive (European Communities Act 1972)
-Transferring constitutional powers
-emergency situations (terrorist attacks in 2001(Terrorism (United Nations Measures) Order 2001

Question 12

What are statutory instruments and what effect do they have?

Answer 12

Rules and regulations made by the Government Ministers and have national effect

Question 13

Who makes the statutory instruments?

Answer 13

The Government ministers and their departments of a particular responsibility

Question 14

Give an example of statutory instruments:

Answer 14

Minister of Transport (secretary of state) - able to deal with necessary road traffic regulations (new mobile phone laws)

Question 15

What does the Legislative and Regulatory Reform Act 2006 state?

Answer 15

Ministers must have regard to a wide range of recommendations, resolutions and representations when maturing the DL

Question 16

What are 3 advantages of delegated legislation?

Answer 16

-saves limited time in parliament
-allows rapid change
-MPs lack detailed or technical knowledge (specific details in Road Traffic detail)
-Allows minor changes to statutes
-Quick response to new developments (covid outbreak)

Question 17

What are 3 disadvantages of delegated legislation?

Answer 17

-Implies that parliament has insufficient time to scrutinise it. Parliament is not reviewing legislation properly
-Sub-delegation of powers is a further problem which causes complexity and confusion
-Sheer volume causes complexity - it’s impossible for anyone to keep abreast of all delegated legislation
-Lack of publicity, not known about by the public

Question 18

What are the two controls over delegated legislation?

Answer 18

Parliament and Courts

Question 19

What form of controls come under parliament?

Answer 19

-Parent/Enabling Act
-Negative resolution procedure
-Affirmative resolution procedure
-Scrutiny committees

Question 20

What is the negative resolution procedure?

Answer 20

Under this procedure the SI must be laid before parliament for 40 days. At the end of this time the instrument will become law unless parliament has objected in the meantime.

Question 21

What is the affirmative resolution procedure?

Answer 21

This is where parliament is required to vote its approval of the delegated legislation on a given date during the time it is laid before parliament.

Question 22

What is the super-affirmative resolution order?

Answer 22

Legislation Reform Order made under the Legislative and regulatory Reform Act 2006 requires ministers to have regard to a wide range of recommendations, resolutions and representations when making the DL

Question 23

What are the two scrutiny committees?

Answer 23

-The Joint Select Committee on Statutory Instruments
-The House of Lords Delegated Powers Scrutiny Committee

Question 24

What is the role of the Joint Select Committee on Statutory Instruments?

Answer 24

Has the power to draw the attention of both houses to an instrument that e.g. appears to impose a tax, gone beyond powers given under the Enabling Act

Question 25

What is the role of The House of Lords Delegated Powers Scrutiny Committee?

Answer 25

Keeps under constant review the extent to which legislative powers are delegated by parliament to government ministers

Question 26

When are court controls used?

Answer 26

Once the DL is in force

Question 27

What does ‘ultra vires’ mean?

Answer 27

‘beyond the powers’

Question 28

How do the court control the DL?

Answer 28

Through the powers of judicial review

Question 29

What is a procedural ultra vires as a court control and give a case:

Answer 29

refers to a situation where a decision-maker fails to follow the correct legal procedures when making a decision: Agricultural Training Board v Aylesbury Mushrooms

Question 30

What is a substantive ultra vires as a court control and give a case:

Answer 30

refers to a situation where a decision or action exceeds the powers granted by law: R v Secretary of State for Health

Question 31

What is a substantive ultra vires for unreasonableness as a court control and give a case:

Answer 31

When a decision is so unreasonable that no reasonable body or authority would even consider imposing it: Strickland v Hayes BC

Question 32

What are the 4 parts to control of the court?

Answer 32

-Procedural ultra vires
-Substantive ultra vires
-Substantive ultra vires for unreasonableness
-Inconsistency with the Human Rights Act 1998

Question 33

What are 3 positives that make parliamentary controls effective?

Answer 33

-Parliament has the ‘ultimate’ control through renovation or amendment of the Parent Act which is consistent with doctrine of parliamentary supremacy
-Parliamentary controls are affected by the parameters set by the Enabling Act - i.e. Parliament only delegates powers to bodies that are accountable to parliament and places limitations on the powers delegated
-The affirmative resolution procedure does give parliament a stronger role (than the negative procedure) as it requires parliament to look at the SI and vote it in

Question 34

What are 3 issues that make parliamentary control ineffective?

Answer 34

-The sheer volume (3,000=4,000 p.a.) of DL means that parliamentary powers are limited as there is little time for proper scrutiny
-The negative resolution procedure offers little practical control and is little more than a rubber-stamping exercise
-The Scrutiny Committees have no power to alter the statutory instrument; they can only refer it back to parliament on certain technical matters

Question 35

What are 3 positives that make judicial controls effective?

Answer 35

-Judicial review does hold the Executive to account and the government usually accepts the courts rulings
-It is fundamental to the rule of law that executive decisions are open to review by judges to see that they conform to what the rule of law requires.
-It gives the judiciary the power to interpret the law and actions of others passing secondary legislation an important role as a ‘check and balance’. This prevents any one body becoming too powerful

Question 36

What three issues make the judicial controls ineffective?

Answer 36

-Courts have little control as judicial review relies on an individual starting a claim
-Judicial review is rarely funded by legal aid and relies on individuals having the money, will and tenacity to pursue the case
-Claimants wishing to use judicial review must pass stringent legal tests (locus standi and three month time limits) before bringing a case which can exclude some
-Many enabling Acts give ministers very wide discretionary powers making it difficult for the court to reach a finding of ultra vires