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Law > Delegated Legislation 2A > Flashcards

Delegated Legislation 2A Flashcards

1
Q

What is delegated legislation?

A

Parliament giving someone else the power to make law.

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2
Q

What allows parliament to make delegated legislation?

A

A parent/enabling act

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3
Q

Give an example of an Enabling Act.

A

Police and Criminal Evidence Act 1984 (PACE)

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4
Q

What did the PACE Act say?

A

That the minister of justice can make rules on police conduct.

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5
Q

Why does parliament pass on responsibility?

A

Saves time and allows for better understanding as the rules are made by specialists.

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6
Q

What are the three types of delegated legislation?

A

Orders in council
By-laws
Statutory Instruments

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7
Q

Who makes orders in council?

A

Monarch and privy council

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8
Q

Why do we have orders in council?

A

To make law quickly with some representation of Parliament

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9
Q

When are orders in council used?

A

To amend or update laws
Transfer responsibility between government departments
Make law in times of emergency or when Parliament is not sitting. (Under Civil contingencies act 2004)

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10
Q

Give an example of an order in council.

A

The misuse of drugs act 1971 (amendment) order 2008

Reclassified cannabis as a class B drug which was previously classified as C

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11
Q

Who makes By-laws?

A

Local authorities or public bodies.

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12
Q

Who do By-laws apply to?

A

Only to the areas over which the council/ public body has control.

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13
Q

Why do we have By-laws?

A

It is quicker for them to make decisions plus have local knowledge.

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14
Q

Give examples of issues dealt with in By-laws.

A

Traffic regulations, parking, behaviour in public.

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15
Q

Give an example of a By-law.

A

Ban on smoking on the London Underground.

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16
Q

Who do statutory instruments apply to?

A

The nation

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17
Q

Who makes statutory instruments?

A

Government departments and ministers.

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18
Q

What can ministers make statutory instruments about?

A

Can only be their area of responsibility.

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19
Q

How many statutory instruments get made per year?

A

3000

20
Q

Why do we have statutory instruments?

A

The people that make them are specialists- they can create better laws.

21
Q

What are the four reasons for delegated legislation?

A

Time
Expertise
Locality
Ease

22
Q

Why is time a reason for delegated legislation?

A

Parliament does not have time to debate every detail of every act. By dividing up the work to other people, this means that more law can be made more quickly.

23
Q

Why is Expertise a reason for delegated legislation?

A

Parliament will not always have the necessary expertise to make the best laws. Parliament are made up of lots of different people, whereas statutory instruments are made specifically by people with expertise in their field.

24
Q

Why is Locality a reason for delegated legislation?

A

Parliament may not live in/ know of issues in local areas; they consider national issues. By-laws are made by people who live/ work in smaller areas and so can make laws specific to that area.

25
Q

Why is Ease a reason for delegated legislation?

A

Delegated legislation can be changed/ made more easily, allowing quicker response to changing circumstances.

26
Q

What are the five parliamentary controls over delegated legislation?

A

Enabling Act
Negative resolutions
Affirmative resolutions
Questioning of Gov Ministers
Scrutiny committee

27
Q

How does an Enabling Act control the delegated legislation?

A

Parliament chooses what powers to give and who to give them to. It can specify who they need to consult/ how they make the DL and where it applies. Parliament can repeal the enabling act at any time - this would instantly remove the power from the delegated body.

28
Q

What happens in the negative resolutions procedure?

A

It is the most common.
Statutory instruments are proposed and will become law immediately and will stay law unless rejected by parliament within 40 days. There is no debate in parliament.

29
Q

What happens in the affirmative resolutions procedure?

A

Less common.
This usually applies to important areas of law. A debate will follow the introduction, and both Houses of Parliament must expressly approve the SI before it can be enacted. Parliament can’t amend - can only approve or annul.

30
Q

What does the questioning of government ministers entail?

A

During a debate in parliament, they will ask the minister who is creating the SI, questions to get a better understanding.

31
Q

What does the scrutiny committee review?

A

All statutory instruments.

32
Q

What can the scrutiny committee do?

A

Draw the attention of both Houses to any SI’s that need further consideration.

33
Q

Why might the scrutiny committee refer a SI back to parliament?

A

If it imposes a charge/ levy
If it applies retrospectively (always banned in enabling acts)
If it exceeds the powers in the enabling act.
If it is an unexpected or unusual use of powers.
If it is unclear/ defective in some way.

34
Q

What are the scrutiny committee’s limitations?

A

They can’t alter or change SIs can only refer to parliament.

35
Q

Who can challenge the DL in court?

A

Someone with ‘standing’ in the case.
(Anyone affected by the DL in some way)

36
Q

What can the court decide about the DL?

A

It can be declared “Ultra Vires” which means void. (No longer has any effect)

37
Q

What are the three situations where court can declare a DL Ultra Vires?

A
  1. The DL goes beyond the powers granted by the parent act.
    The DL did not follow the correct procedure.
  2. A decision made under DL was unreasonable.
38
Q

Give an example case of where the court declared the DL Ultra Vires because it went beyond the powers granted by the enabling act.

A

R v Home Secretary ex parte Fire Brigades Union

HS allowed to decide date to introduce Criminal Injury Compensation Scheme.
HS changed the scheme when not allowed to.

39
Q

Give an case example of where the court declared DL Ultra Vires because the DL did not follow the correct procedure.

A

Agricultural Training Board v Aylesbury Mushrooms

Minister was required to consult “any group representative of substantial employees engaging in the activity concerned”. He did not.

40
Q

Give a case example of where the court declared DL Ultra Vires because a decision made under DL was unreasonable.

A

R (Rogers) v Swindon NHS Trust

R needed a drug. NHS Trust said no as not exceptional circumstances. Court said it was wrong to draw distinction between women with breast cancer is their medical needs were the same so rule was unreasonable.

41
Q

Why is the enabling act effective?
And why is it not?

A

Effective because: Clear on who, what, how and can remove.
Not Effective because: Proactive instead of responsive - requires foresight.

42
Q

Why are negative resolutions effective?
And why are they not?

A

Effective because: very simple process - doesn’t waste time.
Not effective because: could mean a bad law may be passed without parliament noticing it.

43
Q

Why are affirmative resolutions effective?
And why are they not?

A

Effective because: has to be specifically approved so bad laws are picked up on.
Not effective because: takes parliament’s time (defeats point of DL). P can’t amend only approve or deny.

44
Q

Why is the scrutiny committee effective?
Any why is it not?

A

Effective because: with so much DL, they can try to catch bad bits that P might miss.
Not effective because: can only refer and may not have specialist knowledge to know if it is problematic or not.

45
Q

Why are judicial controls effective?
And why are they not?

A

Effective because: numerous ways to prove that DL is Ultra Vires and court can hear for expert witnesses to testify about specialist matters to work out if the law should be void.
Not effective because: only someone with standing can bring the case, person may be going against a large public body with resources and money so odds of winning are next to nothing m. Court can’t change DL can only make it void.

Law (7 decks)

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