Delegated Legislation

Question 1

1st reason why we have delegated legislation

Answer 1

Time - parliament doesn’t have time to debate every small detail of complex regulations for all laws for the whole country or the machinery of Parliament would collapse.

Question 2

2nd reason why we have delegated legislation

Answer 2

Knowledge - Parliament doesn’t have the necessary technical or local knowledge to enact specific legislation for example health and safety legislation or local traffic regulations.

Question 3

3rd reason why we have delegated legislation

Answer 3

Flexibility - delegated legislation can be altered easily as it doesn’t involve such a lengthy process, it can be enacted quickly and revoked if problematic. It is important for implementing EU law.

Question 4

4th reason why we have delegated legislation

Answer 4

Emergency - delegated legislation is useful in times of emergency as Parliament wouldn’t have the time to enact legislation during war time.

Question 5

5th reason why we have delegated legislation

Answer 5

Future needs - the flexibility of delegated legislation enables it to be altered to cater for future events for example changes in the health provision.

Question 6

What are the 3 types of delegated legislation

Answer 6

Orders in Council, Statutory Instruments and Bylaws.

Question 7

What are Orders in Council?

Answer 7

The Emergency Powers Act 1920 and Civil Contingencies Act 2004 allow the government to pass emergency legislation in times of war. It is used to alter legislation quickly as there is no need for it to pass through Parliament. It’s also used to implement EU directives. It was also used to alter the Misuse of Drugs Act 1971 to make cannabis a Class C drug. The Constitutional Reform Act 2005 allows the Privy Council to changes the number of law lords.

Question 8

What are Statutory Instruments?

Answer 8

Ministers and Government departments are given authority to make legislation for areas under their control. This is a major method of law making and over 3000 statues are released a year. An example would be the Lord Chancellor amending the legal funding legislation or the Minister of Transport altering transport regulations. The Legislative and Regulatory Reform Act 2006 gives ministers the power to alter legislation if it helps to reduce the burden of legislation.

Question 9

What are bylaws?

Answer 9

These are released by local authorities and relate to issues in that area. For example traffic regulations and parking restrictions. Bylaws can also be made by private corporations, this means bodies such as the British Airport Authority can release bylaws regulating behaviour on their premises. For example the Water Authority imposing a hose pipe ban.

Question 10

How is delegated legislation controlled by Parliament?

Answer 10

It’s controlled in 4 ways, affirmative resolution, negative resolution, super affirmative resolution and the scrutiny committee.

Question 11

What is affirmative resolution?

Answer 11

A small number of statutory instruments will be subject to an affirmative resolution, this means that the statutory instrument will not become law unless approved by Parliament. The need for this will be included in the enabling act, this usually occurs when the legislation is contentious such as the Police and Criminal Evidence Act 1984. The enabling act states that any new or revised codes of practice must be approved by Parliament, this legislation can only be approved, annulled or withdrawn by Parliament.

Question 12

What is delegated legislation?

Answer 12

Delegated is law made by bodies other than Parliament, parliament usually prescribes the power in a ‘enabling act’ which creates the framework of the law and then delegates the power to either the minister in charge or government body. For example, the Access to Justice Act 1999 which provided the Lord Chancellor with wide powers to alter various aspects of legal funding.

Question 13

What is negative resolution?

Answer 13

Most other forms of delegated legislation will be subject to negative resolution, this means that the relevant piece of legislation will become law unless rejected by Parliament within 40 days. MP’s can also be questioned on work within their departments.

Question 14

What is super affirmative resolution?

Answer 14

There is a new procedure under the Legislative and Regulatory Reform Act 2006 that requires ministers have to regard any representations by a committee of either House, e.g. The Scrutiny Committee.

Question 15

What is the Scrutiny Committee?

Answer 15

This committee reviews all statutory instruments if necessary and draws Parliaments attention to matters of concern. However the review examines the legislation on a technical basis and doesn’t question the policy. It is really concerned with whether or not the legislation remains within the enabling act or whether the legislation is defective in some way. Additionally it can only report back as to its findings and have no power of amendment. The Hansard Committee in 1992 found that some of the critical findings of the committee were ignored by ministers.

Question 16

How is delegated legislation controlled by the courts?

Answer 16

Delegated legislation can be challenged in the courts on the grounds that it is ultra vires, goes beyond the power contained within the enabling act. Any piece of delegated legislation which is declared ultra vires is void and ineffective, this takes 3 forms procedural ultra vires, substantive ultra vires and unreasonableness.

Question 17

What is procedural ultra vires?

Answer 17

This is when the procedure for enacting delegated legislation has not been followed, for example before delegated legislation can be passed, interested parties must be consulted failing to do consult results in a delectation of ultra vires. This occurred in Agricultural Horticultural and Forestry Training Board V Aylesbury Mushrooms, in this case the training board failed to consult the mushroom growers association about changes to regulations, the regulations were held not to apply to them.

Question 18

What is substantive ultra vires?

Answer 18

This is when the delegated legislation goes beyond the power laid down in the enabling act. This occurred in Commissioners of Custom and Excise V Cure and Deeley Ltd 1962, the commission had released legislation stating that they had the power to determine how much tax was due if a tax return was submitted late. The High Court overturned this and stated they did not have the power to do so.

Question 19

What is unreasonableness?

Answer 19

If a piece of delegated legislation is unreasonable it may be overturned by the court. This occurred in Strictland V Hayes Borough Council 1896, in is case the prohibition of singing an obscene song or using bad language generally was considered unreasonable.

Question 20

Another reason statutory instruments can be declared void?

Answer 20

If they conflict with EU law.

Question 21

What are the criticisms of delegated legislation?

Answer 21

The inadequate controls, the lack of awareness, the volume, the technicality, the danger of sub-delegation and it allows non-elected people to make law.