DELEGATED LEGISLATION

Question 1

what is the need for delegated legislation?

Answer 1

• gives law-making powers to other bodies
• (1) lack of parliamentary time (parliament can only pass 17-60 acts each year)
• (2) it allows for technical expertise and knowledge (MPs don’t always have the correct knowledge)
• (3) allows for geographically specific laws to be made by people with local knowledge
• (4) allows for laws to be made quickly In times of emergency

Question 2

statutory instruments

Answer 2

• a type of delegated legislation
• between 3000-4000 a year
• made by ministers in government departments
• parliament delegates law through an initial enabling act
• eg - coronavirus regulations 2020
• used to add detail, to amend and make annual updates
• drafted by the government and passed by (1) a negative resolution order or (2) an affirmative resolution procedure

Question 3

orders in council

Answer 3

• a type of DL
• parliament gives law-making powers to the privy council and the monarch approves all orders in the council
• usually affects the whole country and is used for quick law-making in times of national emergency eg 2011 London riots
• also used to start acts of parliament, to transfer powers and to shut/end a parliament before a general election
• Boris Johnson used an OIC to shut down parliament before final Brexit bill vote in 2019
  -emergency law-making powers by two enabling acts - the Emergency Powers Act 1920 and Civil Contingencies Act 2004

Question 4

bylaws

Answer 4

• parliament gives law-making powers to public authorities and large corporations
• local councils can make bylaws - specific laws that affect their area - Local Government Act 1972 gives most of their delegated law-making powers about parking, speeding, and ball games in local areas
• big businesses like the National Trust have the power to make bylaws and fine people with the National Trust Act 1907 and the Railways Act 1993
• bylaw has to be approved by the local government minister

Question 5

what are parliamentary controls?

Answer 5

• the parent/enabling act
• scrutiny committee
• resolution procedures

Question 6

parents/enabling act

Answer 6

• parliament passes the law making powers to a body through enabling /parent act
• in the act parliament control who can make DL, what DL they can make and the procedure they must follow when making the DL

Question 7

scrutiny committee

Answer 7

• both Houses of Parliament have scrutiny committees
• they scrutinise DL and the enabling acts
• committee can raise concerns about DL but they have no power to stop r amend it

Question 8

resolution procedures

Answer 8

• SI’s are made through resolution procedures
• most made by negative resolution procedure - SI is drafted and remains in parliament for 40 days and if no one objects or asked questions its automaticaly passed
• some are made by affirmative resolution procedure - SI is drafted and must go under a quick debate and vote

Question 9

Controls by the courts;

Answer 9

• procedural ultra vires
• substantial ultra vires
• unreasonableness
• DL doesn’t comply with HR law

Question 10

Procedural ultra vires

Answer 10

• the body/person making the DL has not followed the procedure of the enabling act
• Aylesbury Mushroom case - minister of agriculture passed and SI which required agricultural employers to comply with training boards. They consulted with all affected people bur not with the mushroom growers association, so DL was invalid for them

Question 11

Substantive ultra vires

Answer 11

• body/person making the DL has exceeded the law making powers they were given in enabling act
• AG v Fulham Corporation case (1921) - Borough Council was given the power to make public clothes washing facilities , instead it created commercial launderettes and charged people to was their clothes for them - exceeded law making powers

Question 12

Unreasonableness

Answer 12

• if the DL has no reasonable body it would be invalid because it is unreasonable (Wednesbury)
• Strickland v Haynes Borough Council - local council had made a bylaw which banned the singling of rude songs in a whole town. This was unreasonable because it was to widely drawn - could be fined in own home.

Question 13

The DL does not comply with HR law

Answer 13

• S^ of the HRA 1998 says public authorities should not act in a way that restricts/removes a person’s HR
• S2 and S3 of the HRA 1998 says that a court can declare a piece of DL is invalid if it goes against our HR laws
• this would be through judicial review

Question 14

Miller v UK government

Answer 14

• Boris Johnson and his government used the privy council - to pass an order in council to shut down parliament for several weeks leading up to the brexit bill
• Gina Miller challenged this decision saying it was unlawful to close parliament

Question 15

advantage - saves time

Answer 15

• full legislative process it time consuming
• only 70 acts of parliament are passed each year, compared to 3000-4000 statutory interpretation
• parliament does not enough time to update/change laws, fill in details and make local laws

Question 16

advantage - technical expertise

Answer 16

• better to leave some details for others
• DL can fill in the details as it allows gov ministers to regularly, quickly and efficiently amend laws and update rules

Question 17

advantage - allows debate

Answer 17

• enabling/parent act sets out the limitations of DL
• there is an opportunity for debate, discussion and vote if passed by affirmative resolution (police and crim evidence act 1984)
• however most are passed by a negative resolution procedure

Question 18

advantage - democratic

Answer 18

• bylaws are made by locally elected people so are fairly democratic
• can be argued that ministers working in one of the gov departments (eg - education, environment, justice) are democratically elected
• bylaws made for local people with the local knowledge, although not democratic they can make very specific laws

Question 19

disadvantage - not democratic?

Answer 19

• takes lawmaking away from democratically elected HOC and allows civil servants to write laws through SI
• sub-delegation means lawmaking in handed down from minster to civil servant and simply rubber stamped by the minster

Question 20

disadvantage - amount of DL

Answer 20

• very large amount of DL
• inaccessible, difficult yo discover, aggravated by lack of publicity
• written in private, not debated in public in the same way bills are

Question 21

disadvantage - judicial review

Answer 21

• JR depends upon an individual/group of interested people and many don’t understand the process or want to get involved (cost)
• very short window to take DL to court
• DL is not well publicised, many people aren’t aware until JR has passed (3 months)