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Delegated legislation Flashcards

1
Q

What is delegated legislation?

A

A law that is made by a person or body to whom Parliament has delegated a law making power

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2
Q

Why do we need delegated legislation?

A

-Saves parliamentary time
-Expertise
-Quicker to pass
Consultation
-Easy to amend

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3
Q

What are the three types of delegated legislation?

A

-Orders in council
-Statutory instrument
-By-law

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4
Q

Statutory instruments

  1. Who are they made by?
  2. Who do they effect?
  3. What are their characteristics?
  4. What is an example of this?
A
  1. Government ministers/government departments
  2. National effect
  3. regulations, orders, rules and codes of practice
  4. The rights of the subject, Protection of Freedom Act 2012
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5
Q

Orders in Council

1.Who are they made by?
2. Who do they effect?
3. What are their characteristics?
4. What is an example of this?

A
  1. The King and the Privy Council
  2. National effect OR national effect
  3. Drafted by a Government Minister then approved by the King and 3 or 4 Privy Councillors
  4. The Northern Ireland Order 2000
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6
Q

By-laws

  1. Who are they made by?
  2. Who do they effect?
  3. What are their characteristics?
  4. What is an example of this?
A
  1. Local authorities or public corporations
  2. Local in effect or restricted to the provision of a public corporation service
  3. -Local by-laws cover a matter of local concern
    -Public corporation by-laws cover matters that effect the public using their services
    -Must be approved by the relevant government department to be enforceable
  4. The Local Government Act 1972
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7
Q

What are the three ways of controlling delegated legislation?

A

-Enabling act
-Scrutiny committee
-Laying before Parliament

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8
Q

What happens in the Enabling Act?

A
  1. Parliament sets out boundaries within the Enabling Act
  2. The Act clearly defines the nature and scope of the power being delegated
  3. The Act sets down strict procedures and limitations
  4. The act will often say that the person must consult with a number of parties
  5. If the delegated body abused the power it will be void
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9
Q

What happens in the scrutiny committee?

A

The Committee was established in 1993 in the House of Lords to:
-Review the extent to which legislative powers are delegated by Parliament to other bodies
-Scrutinise any bills that delegate powers to make statutory instruments

They report back their findings BUT cannot actually change the bill

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10
Q

What happened since 1973 with the scrutiny committee?

A

The Joint Select Committee on Statutory Instruments has got the power to Dra the attention of both Houses of Parliament to a Statutory Instrument and refer it back if:

-It imposes a tax
-It has retrospective effect
-It exceeds the powers of the Enabling Act
-It is unclear or defective

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11
Q

What are the two types of resolution in laying before Parliament?

A

Affirmative and negative

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12
Q

What is affirmative resolution?

A

Parliament are required to vote on the Statutory Instrument to decide whether it should pass

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13
Q

What is negative resolution?

A

There is no vote and instead, if Parliament do not bring a motion to annul it within 40 days… it will automatically pass

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14
Q

Name the advantages of the Enabling Act

A

-Allows Parliament to set the limits on the powers they are delegating, for example by detailing who can make the law and the precise procedures they must follow.
-If Parliament are not happy with the use of powers they have delegated, they can repeal or amend the Enabling Act to take away the delegated powers. -The Enabling Act upholds Parliamentary Supremacy as delegated laws are being made in line with Parliament’s wishes

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15
Q

Name the disadvantages of the enabling act

A

-The powers in the Enabling Act can be very wide and it is sometimes unclear how much power has been given away to the delegated person/body
-Parliament often pass a large amount of law making power to the delegated body under the Enabling Act, which is eroding Parliamentary Supremacy
-This often means that the delegated body can make rules on lots of different areas of law and it is sometimes easy for them to exceed the powers that have been delegated to them under the Act

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16
Q

Name the advantage of the Delegated powers Scrutiny Committee

A

-The committee is effective because they look at the proposals in the Enabling Act before it is enacted, making sure that the powers are controlled adequately before the Act even comes into force
-They also ensure that only appropriate powers are being delegated within the Act by scrutinising and checking it beforehand
-This can lead to Enabling Acts being modified before they are passed, avoiding potential abuse of power by the delegated body

17
Q

What is the disadvantage of delegated powers scrutiny committee?

A

-However, if problems or issues are found within a Bill that will become an Enabling Act, the committee can only report these back to Parliament
-They cannot make any changes to the Bill themselves, which makes this seem like a pointless exercise

18
Q

What is ultra vires?

A

A person making a piece of delegated legislation has gone beyond their power

19
Q

What are the three types of ultra vires?

A

Substantive, substantive (unreasonableness) and procedural

20
Q

What is substantive ultra vires?

A

A body has exceeded their powers when making a delegated legislation (eg Fire Brigades union)

21
Q

What is substantive (unreasonable) ultra vires?

A

A body has exceeded their powers by making an unreasonable rule (eg Associated Picture House v Wednesbury Corporation)

22
Q

What is procedural ultra vires?

A

Delegated legislation has been made following the incorrect processes (eg the Aylesbury Mushrooms case)

23
Q

Describe the legal principle for R v Home secretary, ex party Fire Brigade Union (SUBSTANTIVE ULTA VIRES)

A

The House of Lords ruled that the Home Secretary had gone beyond the powers granted to him in the Enabling Act and so the delegated legislation he had made was void on the basis of substantive ultra vires

24
Q

Describe the legal principle for Associated Picture House v Wednesbury Corporation (SUBSTANTIVE UNREASONABLE)

A

The Court of Appeal stated that in certain circumstances the courts could override decisions made by officials or politicians if they had been made in an unreasonable or irrational way

25
Q

Describe the Aylesbury Mushroom Case (PROCEDURAL ULTRA VIRES)

A

His order establishing a training board was invalid against mushroom growers as he had failed to consult the association. However, the order was still valid for the other organisations that had been consulted

26
Q

Evaluation of court controls.

Give one negative

A

-It is hard for the courts to control delegated legislation
-Many enabling acts give away wide powers to delegated bodies to make law. This makes it hard for Judges to assess whether the power used by the delegated body has been exceeded. As enabling acts are often drafted in a vague way, this is unhelpful to judges when carrying out judicial review
-This means that it is too easy for delegated bodies to exceed the powers that Parliament gave to them in the enabling act. Ultimately, this allows them to exceed Parliament’s intentions when giving them law-making powers, and potentially make laws in area outside their powers. Furthermore, the courts cannot control delegated legislation when it is being made and can only be reactive once an abuse of power has occurred

27
Q

Evaluation of court controls.

Give a disadvantage

A

-The law will already be in force
-Court controls of delegated legislations through Judicial review and ultra vires can only be used after a piece of delegated legislation has been made and come into force. This means that the court controls of delegated legislation can only be used by individuals who have brought a case of judicial review after they have been negatively impacted by the law, which is unfair
-Furthermore, as the law is already in place, many people in society could potentially be negatively affected by it. Only those who can afford judicial review will have the ability to challenge it too. This means the court controls of delegated legislation are limited and not fully effective

28
Q

Evaluation of court controls

Give an advantage

A

-The courts have the power to declare the piece of legislation void
-The courts have the power to declare legislation void if it’s ultra vires. This ensures that the unfair piece of delegated legislation can be removed to stop others being negatively impacted by it, which is fair and effective. This process also highlights the issue with the enabling act/piece of delegated legislation to Parliament and the public which can bring about change to the law]-Furthermore, the knowledge that the courts have the power to declare a piece of delegated legislation void if it is unlawful can act as a deterrent to delegated bodies and encourage them to be more careful when they’re creating delegated legislation, to ensure it abides by the powers given to Parliament

29
Q

Evaluation of court controls

Give an advantage

A

-Provides a check on any law making
-Through Judicial review, the courts have the power to check pieces of delegated legislation to ensure it wasn’t made ultra vires. This gives them power to spot and highlight when bodies have exceeded their law-making powers. This upholds Parliamentary Supremacy as the courts are ensuring all laws are made according to Parliament’s intentions and wishes
-Furthermore, this process ensures that delegated bodies do not act against the ultimate law making body which is Parliament, which upholds the theory of the Separation of powers. The judiciary are holding the executive to account, which is effective

30
Q

List the advantages of using delegated legislation

A

-Saves time and money for Parliament
-Allows for more thorough consultation
-Allows for technical and local expertise
-IT can be controlled

31
Q

List the negatives of using delegated legislation

A

-Undemocratic
-Complex language
-Issue of sub-delegation
-Complicated

Law (10 decks)

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