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A-level Law > Delegated Legislation > Flashcards

Delegated Legislation Flashcards

1
Q

What is the definition of Delegated Legislation?

A

“A source of Uk law made by bodies ither than Parliament, but with the authority of Parliament”

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2
Q

What is Delegated Legislation commonly known as?

A

Secondary Legislation

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3
Q

To delegate Parliaments power what must it pass? State an example

A

-An Enabling Act
e,g s.195 Road traffic Act 1988 (Allows the secretary of state to make regulations through Statutory Instruments)

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4
Q

Delegated Legislation can be used to set the date for when provisions of an Act will come into effect as law (where such provisions did not come into effect on Royal assent). Give an example.

A

The Human Rights Act 1998 came into effect on the 2nd October 2000, through a Statutory Instrument signed by the Home Secretary

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5
Q

What is the phrase for when delegated legislation can go “beyond its powers” when exceeding its boundaries?

A

“ultra vires”

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6
Q

Why is Delegated Legislation such a key source of law?

A
  • The amount far exceeds Acts of Parliament
  • The main legislation passed substantially affects day to day life
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7
Q

What are the 5 reasons why Delegated Legislation is necessary?

A

1) Expertise (detailed laws)
The subject matter may be complex and require an expert on that subject, therefore the law would be far better if written by specific Government departments that have the necessary expertise
2) Local Knowledge
Some issues need consideration on a local level such as local authorities being given the power to create alcohol free zones in locations that are most appropriate.
3)Time
Parliament is very busy, by using delegated Legislation Parliament can acknowledge that law is needed quickly, but another authorised body can create it.
4) Emergencies
Parliament does not sit around all year, if there is an important development during a recess, the HL and HC may be recalled. However this is relatively rare and therefore powers exist to make laws in such situations without the need to involve Parliament
5) Flexibility
Delegated Legislation can be quickly put into action and easily revoked if there is a problem or if changes need to occur. Procedures are much simpler and therefore laws can keep up to date and respond to unforeseen situations when necessary
e.g Magistrate sentencing powers increased to 12 months in April 2022 to deal with Covid backlog, but scaled back in 2023 by a Statutory Instrument

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8
Q

What are the types of Delegated Legislation?

A

1) Statutory Instrument
2)Byelaws
3)Order in Council
4) Welsh parliament

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9
Q

What are Statutory Instruments?

A

-Made by the secretary of State for a Government Department
-Countrywide
-Affects every aspect of life
-Most frequent type
e.g Under the authorisation of the s.41 Road Traffic Act 1988, the Secretary of State, banned the use of mobile phones whilst driving

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10
Q

What are byelaws?

A

-Local laws designed to deal with local issues
-Created by Public Authorities or Statutory bodies
-The scope of the law is restricted (they have limited jurisdiction)
e.g Cornwall Council banning dogs on certain beaches all year round or in certain months

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11
Q

What are Orders in Kings Council?

A

-Made by the King acting on the advice of the Privy Council and are approved in person by the Monarch
- The substance of the orders are controlled by the Government
-Government Ministers make up the executive Privy Council
-Countrywide
-Effect a wide range of matters
-Allows the Government to make laws without going through Parliament
-Issued when other legislative methods are deemed inappropriate such as amending laws or in emergencies
e.g Fuel Crisis in 2000
The rising cost of fuel led to lorry drivers blockading fuel deports preventing access to fuel. This led to a serve shortage so the Privy Council gave authority under the Energy Act 1976 for the army to clear access so emergency services had fuel

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12
Q

What can the Welsh Parliament make laws on?

A
  • Health
    -Transport
    -Agriculture
    -Banning of chastisement in Wales under the children (Abolition of Defence of Reasonable Punishment) (Wales) Act 2020
    -Previously (pre 2010) the Welsh Parliament required the Uk Parliament permission before passing laws but this no longer the case
  • Primary laws now known as an Act of the Senedd
    -Delegated Legislation can also be made by Welsh Ministers using the enabling powers from both Uk and Welsh Acts
    -Statutory Instruments are the most common form
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13
Q

What act gave the Welsh Parliament authority over certain areas?

A

Devolution(Government of Wales Act 2006)

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14
Q

Why are there controls for Delegated Legislation?

A

-To ensure that those with delegated powers do not abuse their power

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15
Q

What are the two bodies that are responsible for controlling the use of delegated legislation?

A

-Parliament (During the creation of the DL)
-King’s bench Division of High Court (after the DL has been made)

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16
Q

What are the controls by Parliament on Delegated Legislation?

A

1) Wording on the enabling Act

2) Scrutiny Committee

3)Laying before Parliament

(Affirmative Resolution Procedure)
(Negative Resolution Procedure)
(Super- Affirmative Resolution Procedure)

4) Consultation Requirements

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17
Q

What is meant by the wording of the enabling act in terms of controlling delegated legislation?

A

-Sets boundaries of who can make DL, on what subject, what type of DL can be made and whom it will affect
(Parliament also retains the power to repeal the enabling act)

18
Q

What is the Scrutiny Committee in terms of controlling delegated legislation?

A

-review all statutory instruments and where necessary bring them to the attention of both houses e.g it is unclear or appears to be “ultra vires” etc
-The committee can only reporting findings and has no power to alter the SI and is not concerned with the underlying policy
-However due to the sheer number of delegated legislation per year (roughly 3000 SI) the committee cannot thoroughly monitory every proposal, it is almost certain a badly drafted one gets through

19
Q

How can Laying before Parliament control delegated legislation?
(statutory Instruments only)

A

-This means that the SI is placed in both houses and MPs/Lords can approve or disapprove the new law a certain time frame. Could be through either of:

-Affirmative Resolution Procedure

-Negative Resolution Procedure

-Super-Affirmative Resolution procedure

20
Q

What is the Affirmative Procedure?

A

-Required the SI to be formally approved by Parliament
- This is an effective control as the DL must be looked at and scrutinised
-However, due to this requiring a positive motion by MPs/Lords they need to find time in their already busy schedule

21
Q

Roughly how many SIs are subject to the Affirmative Resolution Procedure?

A

20%

22
Q

State an example where any SI must go through an Affirmative Resolution Procedure?

A

Any Statutory Interpretation made under s.14 Officials Secret Act 1989

23
Q

What is the Negative Resolution Procedure?

A
  • The Statutory instrument does not need active approval by Parliament
    -Laid before Parliament for 40 days and providing it remains unchallenged it automatically becomes law
    -Even if a debate request has been made, if the time runs out before it takes place, the SI will become law
    -Considered slightly less effective as mistakes could go unnoticed
24
Q

How many Statutory Interpretations are passed by the Negative Resolution Procedure?

A

80%

25
Q

What is the Super-Affirmative Resolution Procedure?

A
  • An enhanced procedure
    -Gives Ministers very wide powers to alter any primary act to remove “burdens” when usually only an act of Parliament can alter another act of Parliament
  • The minister created a proposal for a SI and an explanatory instrument
    -Committees from both houses will consider the proposal for 60 days and make an recommendations
    -The minister mut abide by this recommendations and only once this have been made can the minister lay the SI under the affirmative procedure
26
Q

what does the Super-Affirmative Resolution Procedure apply to?

A

Only Statutory interpretations made under the Legislative and Regulatory Reform Act 2006

27
Q

During covid-19, by early October 2020 out of 256 Statutory Instruments how many were subject to the Negative Procedure?

A

184

28
Q

How can Consultation Requirements act as a control on Delegated Legislation by Parliament?

A

-Most Enabling Acts require consultation with certain interested parties or those who will be effected by the legislation

29
Q

Given a example of an act where consultation requirements are necessary

A

s.195 Road Traffic Act 1988
“Secretary of State must consult with such representative organisations as he thinks fit”

30
Q

How does the Court control Delegated Legislation?

A

Judicial Reviews
Determines if it is “ultra vires” or “intra vires”

31
Q

What is a Judicial Review?

A

-Takes place within the King’s Bench Division
-Must be started within 3 months from when the grounds of the application arose
- “Leave” (Permission) must be granted by s High Court Judge
-The person making the challenge must have “Locus Standi” (sufficient interest)
Two types of Ultra Vires:
-Substantive ultra vires
-Procedural Ultra Vires

32
Q

What is the Latin for “Sufficient interest”?

A

“Locus Standi”

33
Q

What are the two types of Ultra Vires?

A

-Substantive ultra vires
(The content/ subject matter lies beyond the scope of the enabling act)
-Procedural Ultra Vires
(The correct procedure was not followed)

34
Q

Give a case example for Substantive ultra vires

A

Strictland
A byelaw for prohibiting the signing of any obscene song and the use of any obscene language was deemed to be ultra vires because it was too broad in that it covered areas in public and private

35
Q

Give a case example of Procedural ultra vires

A

Aylesbury Mushroom
the Minister was regarded to consult any relevant organisations he saw fit, he failed to consult the Mushroom Growers Association ( representing 85% of all mushroom growers)

36
Q

When can judges void delegated legislation?

A

When it is deemed to unreasonable
known as “Wednesbury Unreasonableness”, it means that a decision is so unreasonable that no reasonable person could have made it

37
Q

Give a case example for Wednesbury unreasonableness

A

Wednesbury Corporation
A cinema was granted permission to open on Sundays however no one under 15 could go, on the facts of the claim the Cinema lost their claim however, this case created the test for what we know call “wednesbury Unreasonableness”

38
Q

What did Lord Diplock describe Wednesbury Unreasonableness”?

A

“Defiance of logic”

39
Q

State the advantages of Delegated Legislation

A

1) Saves Parliament time
2) Access to Local Knowledge
3) Faster
4) Increased Consultation
5) Easy to amend

40
Q

State the disadvantages of delegated Legislation

A

1) Undemocratic
2) Sub-Delegation
3) Difficult Language
4) Large Volume and lack of Public awareness
5) Henry V111 Powers
( Allows primary legislation to be amended or repealed by secondary legislation with or without further parliamentary scrutiny
Note- The Lords Delegated Powers and Reform Committee pay close attention to any bill including such power)

A-level Law (13 decks)

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