Delegated Legislation

Question 1

How does Baldwin justify delegated legislation?

Answer 1

-Parliament does not have the time or expertise to make specialist bodies of rules individually

Question 2

How is delegated legislation legitimised and checked?

Answer 2

• SIs are regulated by the Statutory Instruments Act 1946
• Orders in Council, more important pieces of delegated legislation are signed by Ministers and approved at a monthly meeting of the Privy Council

Question 3

What is an argument on Parliamentary Sovereignty linked to delegated legislation?

Answer 3

• Provision is made for delegated legislation to be brought into force by a parent Act but it will not always be brought into force
• Therefore Parliament has declared that the law should be X but the government has not made that law binding

Question 4

What are the 2 main functions carried out by delegated legislation?

Answer 4

1. Bringing sections of Acts into force

2. Filling in framework Acts

Question 5

Why are Henry VIII clauses so controversial and why are the useful?

Answer 5

• They allow secondary legislation to amend or repeal acts of Parliament, this can be viewed as a limit on Parliamentary sovereignty (although Parliament in the first place has enabled this use)
• Henry VIII clauses can efficiently make minor amendments to Acts

Question 6

Who drafts secondary legislation?

Answer 6

• The legal branch of the individual department
• Unlike Bills which are drafted by Parliamentary Counsel
• The text must be signed off by a minister in the relevant department - R v Secretary of State for Health [2005]

Question 7

What is the Negative Process for SIs?

Answer 7

-They will become law on the date stated but can be annulled if either House passes a motion within 40 days

Question 8

What is the Affirmative Procedure for SIs?

Answer 8

• The SI must receive Parliament’s approval before it can come into force
• This represents around 10% of SIs

Question 9

In what way is delegated legislation scrutinised?

Answer 9

• By select committees (each with a lawyer attached)
• The Joint Committee on Statutory Instruments checks that the SIs are technically (not substantively) correct
• The House of Lords Select Committee on the Merits of Statutory Instruments scrutinises the merits of SIs based on their political and legal importance

Question 10

How do the Courts treat delegated legislation?

Answer 10

• It is amenable to judicial review
• In Ahmed [2010] the Supreme Court found that delegated legislation freezing the assets of suspected terrorists was ultra vires

Question 11

What was the controversy with the Legislative and Regulatory Reform Act 2006?

Answer 11

-It contained a Henry VII clause which delegated the power of ‘reforming legislation’, allowing delegated legislation to be passed making any possible change to primary legislation, perhaps even rewriting the Acts themselves

Question 12

What is the standard form of delegated legislation and what is the key issue with secondary legislation?

Answer 12

• Statutory Instruments
• It receives far less scrutiny from Parliament than bills do
• They also cannot be amended