Delegated Legislation *

Question 1

What is delegated legislation (DL)?

Answer 1

When Parliament pass down some of their law making power to other bodies

This is done through an Enabling Act such as the Police and Criminal Evidence Act (PACE) 1984.

Question 2

What are orders in council?

Answer 2

A type of delegated legislation made by the monarch and their Privy council

Used to amend old laws, transfer power between Government departments, and respond to emergencies when Parliament are not sitting.

Question 3

What is the purpose of orders in council?

Answer 3

To amend old laws, transfer power, and respond to emergencies

An example is the Misuse of Drugs Act 1971 Amendment Order 2008.

Question 4

Give an example of an order in council.

Answer 4

Misuse of Drugs Act 1971 Amendment Order 2008

This order re-classified cannabis from a class C drug to a class B drug.

Question 5

What are by-laws?

Answer 5

Laws made by local councils or large public bodies

They apply only to the area under the control of the council/public body.

Question 6

What is an example of a by-law?

Answer 6

A smoking ban created by the London Underground

This by-law applies only to the London Underground.

Question 7

What are statutory instruments (SIs)?

Answer 7

Laws made by government departments and ministers about their area of expertise

Roughly 3000 of these are made a year and they apply nationally.

Question 8

Give an example of a statutory instrument.

Answer 8

Police Code of Practice under PACE

The Minister of Justice can create rules about stop and search, arrest, etc.

Question 9

How many statutory instruments are made each year?

Answer 9

Roughly 3000

These apply nationally.

Question 10

True or False: By-laws apply to the entire country.

Answer 10

False

By-laws apply only to the specific area under the control of the council or public body.

Question 11

Fill in the blank: Delegated legislation is done through an _______.

Answer 11

Enabling Act

An example of an Enabling Act is the Police and Criminal Evidence Act (PACE) 1984.

Question 12

What is the role of the Enabling Act in delegated legislation?

Answer 12

It allows Parliament to decide who can make law, how they make this law, and what they can make law about.

The Enabling Act can also be repealed by Parliament to withdraw the power of delegated legislation.

Question 13

What are the two procedures through which statutory instruments (SIs) can be controlled?

Answer 13

Negative resolution procedure and affirmative resolution procedure.

The specific procedure is determined by the Enabling Act.

Question 14

How does the negative resolution procedure work?

Answer 14

The SI remains law unless Parliament rejects it within 40 days.

This procedure is more common than the affirmative resolution procedure.

Question 15

What is required for an affirmative resolution to take effect?

Answer 15

Parliament must approve the SI before it becomes law.

This procedure usually applies to significant aspects of delegated legislation.

Question 16

What can the Joint Select Committee do regarding statutory instruments?

Answer 16

Refer SIs to Parliament if they are retrospective, exceed the Enabling Act, or use powers unusually.

The Committee cannot alter SIs themselves.

Question 17

What is judicial review in the context of delegated legislation?

Answer 17

It is when someone with ‘standing’ asks the King’s Bench Divisional Court to declare that DL is ‘ultra vires’ and void.

‘Ultra vires’ means beyond the powers granted in the Enabling Act.

Question 18

Give an example of delegated legislation being declared ultra vires.

Answer 18

R v Home Secretary ex parte Fire Brigades Union.

This case involved changing the compensation scheme beyond the powers granted.

Question 19

What is an example of improper procedure leading to ultra vires?

Answer 19

ATB v Aylesbury Mushrooms.

The case involved not consulting the mushroom growers association.

Question 20

What can lead to a delegated legislation being considered unreasonable?

Answer 20

Providing different medical treatment to individuals with the same illness.

This was illustrated in the case R (Rogers) v Swindon NHS Trust.

Question 21

True or False: Parliament can only control delegated legislation reactively.

Answer 21

False.

Controls are mostly proactive, requiring foresight from Parliament.

Question 22

What happens if Parliament does not approve of a statutory instrument under the affirmative resolution procedure?

Answer 22

Parliament can reject the SI.

This is a key difference from the negative resolution procedure.

Question 23

What is the purpose of the Enabling (Parent) Act in parliamentary control?

Answer 23

It sets out the exact conditions for making delegated legislation, including who can make it, the scope, and the time it applies.

If conditions are exceeded, the delegated legislation can be declared void.

Question 24

What happens if no action is taken by Parliament within 40 days of a proposed statutory instrument?

Answer 24

It automatically becomes law.

This often leads to statutory instruments not being properly considered.

Question 25

Why are negative resolutions considered less effective in parliamentary control?

Answer 25

Parliament is often too busy to properly consider statutory instruments, leading to potentially bad laws being made. ## Footnote Despite this, negative resolutions allow for quick passage of statutory instruments when needed.

Question 26

What is the role of affirmative resolutions in parliamentary control?

Answer 26

Some statutory instruments must be specifically approved by Parliament through a vote. ## Footnote This helps to catch bad laws, but it consumes Parliament's time.

Question 27

What is the function of The Joint Select Committee?

Answer 27

To check every proposed statutory instrument to ensure compliance with the rules of delegated legislation. ## Footnote They can refer the SI to Parliament but cannot amend or reject it.

Question 28

What is judicial review in the context of delegated legislation?

Answer 28

A process through which courts can control delegated legislation by declaring it void if powers have been exceeded (ultra vires). ## Footnote This provides independent scrutiny of how delegated powers are exercised.

Question 29

What was the significance of the Aylesbury Mushroom case?

Answer 29

It demonstrated that the procedure adopted before the delegated legislation was incorrect, leading to the declaration of the legislation as void. ## Footnote This case highlights the importance of proper procedures in exercising delegated powers.

Question 30

What limitations exist regarding who can bring a case to court for judicial review?

Answer 30

Only someone with standing can bring a case, which limits access to judicial review. ## Footnote This means not just anyone can sue, making it difficult for individuals to challenge delegated legislation.

Question 31

What are the costs associated with bringing a judicial review case?

Answer 31

It is very costly, which can deter individuals from pursuing a case against public bodies. ## Footnote Public bodies often have more resources and legal support.

Question 32

What powers do courts have in relation to delegated legislation?

Answer 32

Courts can declare delegated legislation void but cannot change or amend it. ## Footnote This limitation means Parliament might need to reconsider the Enabling Act to make revised delegated legislation.

Question 33

Why is the inability of judges to amend delegated legislation significant?

Answer 33

It prevents unelected judges from gaining significant power, maintaining the principle of Separation of Powers. ## Footnote This is important for the balance of power in governance.