Delegated Legislation 2A

Question 1

What is delegated legislation?

Answer 1

Parliament giving someone else the power to make law.

Question 2

What allows parliament to make delegated legislation?

Answer 2

A parent/enabling act

Question 3

Give an example of an Enabling Act.

Answer 3

Police and Criminal Evidence Act 1984 (PACE)

Question 4

What did the PACE Act say?

Answer 4

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

Question 5

Why does parliament pass on responsibility?

Answer 5

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

Question 6

What are the three types of delegated legislation?

Answer 6

Orders in council
By-laws
Statutory Instruments

Question 7

Who makes orders in council?

Answer 7

Monarch and privy council

Question 8

Why do we have orders in council?

Answer 8

To make law quickly with some representation of Parliament

Question 9

When are orders in council used?

Answer 9

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)

Question 10

Give an example of an order in council.

Answer 10

The misuse of drugs act 1971 (amendment) order 2008

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

Question 11

Who makes By-laws?

Answer 11

Local authorities or public bodies.

Question 12

Who do By-laws apply to?

Answer 12

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

Question 13

Why do we have By-laws?

Answer 13

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

Question 14

Give examples of issues dealt with in By-laws.

Answer 14

Traffic regulations, parking, behaviour in public.

Question 15

Give an example of a By-law.

Answer 15

Ban on smoking on the London Underground.

Question 16

Who do statutory instruments apply to?

Answer 16

The nation

Question 17

Who makes statutory instruments?

Answer 17

Government departments and ministers.

Question 18

What can ministers make statutory instruments about?

Answer 18

Can only be their area of responsibility.

Question 19

How many statutory instruments get made per year?

Answer 19

3000

Question 20

Why do we have statutory instruments?

Answer 20

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

Question 21

What are the four reasons for delegated legislation?

Answer 21

Time
Expertise
Locality
Ease

Question 22

Why is time a reason for delegated legislation?

Answer 22

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.

Question 23

Why is Expertise a reason for delegated legislation?

Answer 23

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.

Question 24

Why is Locality a reason for delegated legislation?

Answer 24

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.

Question 25

Why is Ease a reason for delegated legislation?

Answer 25

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

Question 26

What are the five parliamentary controls over delegated legislation?

Answer 26

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

Question 27

How does an Enabling Act control the delegated legislation?

Answer 27

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.

Question 28

What happens in the negative resolutions procedure?

Answer 28

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.

Question 29

What happens in the affirmative resolutions procedure?

Answer 29

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.

Question 30

What does the questioning of government ministers entail?

Answer 30

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

Question 31

What does the scrutiny committee review?

Answer 31

All statutory instruments.

Question 32

What can the scrutiny committee do?

Answer 32

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

Question 33

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

Answer 33

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.

Question 34

What are the scrutiny committee’s limitations?

Answer 34

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

Question 35

Who can challenge the DL in court?

Answer 35

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

Question 36

What can the court decide about the DL?

Answer 36

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

Question 37

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

Answer 37

1. The DL goes beyond the powers granted by the parent act. The DL did not follow the correct procedure. 3. A decision made under DL was unreasonable.

Question 38

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

Answer 38

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.

Question 39

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

Answer 39

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

Question 40

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

Answer 40

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.

Question 41

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

Answer 41

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

Question 42

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

Answer 42

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

Question 43

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

Answer 43

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.

Question 44

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

Answer 44

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.

Question 45

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

Answer 45

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.