Delegated Legislation

Question 1

Define delegated legislation

Answer 1

Law made by some person or body other than parliament but with the authority of parliament

Question 2

How is parliaments authority to make delegated legislation laid down

Answer 2

In a ‘parent’ act of parliament known as an ‘enabling act’, which creates a framework of the law and then delegates power to others to make more detailed law in that area

Question 3

What are the three types of delegated legislation

Answer 3

Orders in council
Statutory instruments
By-laws

Question 4

What are ‘Orders In Council’

Answer 4

Made by Queen and privy council (consisting of PM and other leading gov members ). Allows laws to be made without going through parliament. Made on a variety of matters including transferring responsibility between gov departments (ministers of justice created with powers of previous dept of constitutional affairs and some powers of him office transferred to new ministry). Also, bringing acts or parts of acts of parliament into force and as a member of the EU and therefore giving legal effect to EU directives.

Question 5

Give examples of other powers Privy council have

Answer 5

To make law in emergency situations under Civil Contingencies Act 2004 (only exercised in absence of parliament or in times of emergency).

To make other types of law (ie 2003 Order in Council used to alter Misuse of Drugs act 1971 to make cannabis a class C drug which was later changed 5 years later back to a B after another order in council was issued)

Has to be an enabling act to give them power to change a particular topic of law, ie the enabling act for the above example was the Misuse of Drugs Act 1971.

Privy council can also alter number of SC judges due to the Constitutional reform act 2005.

Question 6

Define statutory instruments

Answer 6

Rules and regulations made by gov ministers

Question 7

What are statutory instruments

Answer 7

Able to make regulations under their particular responsibility. About 15 gov departments and each one deals with a different area of policy and can make rules and regulations in matters it deals with (ie minister of work and pensions can make laws such as health and safety at work). They can be really short such as annual minimum wage changes, or long and complex and too long to include in parliament acts.

Question 8

Give some examples of highly detailed statutory instruments

Answer 8

Building regulations 2010: 10 parts and 6 schedules. Amended a few times by further regulations. Made under European Union Act 1972 and Building Act 1984

Police codes of practice (PACE): such as stop and search, arrest and detention. Made by minister of justice under powers in Police and Criminal Evidence Act 1984 and updates from time to time.

3000 instruments made yearly

Question 9

What are By-Laws

Answer 9

Made by local authorities to cover matters within their own area (ie a county council can pass laws affecting the whole country whereas a district or town council can make by laws for its district or town.

Question 10

Give some examples of potential ByLaws

Answer 10

Traffic control (such as parking restrictions), banning drinking in public or banning people riding bikes in local parks

Question 11

Who else can make By-Laws

Answer 11

Public corporations and certain companies for matters within their jurisdictions that involved the public, IE British Airports Authority and railways can enforce behaviour rules.

Question 12

What are checks on the enabling act (control by Parliament)

Answer 12

It has initial control over what powers are delegated as the enabling act sets out which delegates legislation must be made. It will state what minister can make them and the type of laws to be made and where they apply. Also delegated powers scrutiny committee in HoL before committee state to see if bills going through use delegated power inappropriately

Question 13

Ways of checking actual delegated legislation

Answer 13

Affirmative resolution (won’t be law unless approved by Parliament, ie new or revised codes of practice under Police and Criminal evidence act 1984)

Negative resolution (means relevant statutory instrument will become law unless rejected by parliament in 40 days)

Questioning gov ministers

Joint select committee on statutory instruments (scrutiny committee)(Reviews all statutory instruments and will draw attention of p if further considering needed. Main grounds are if it imposes a race or charge as only elected body can do that, it had effective not given in enabling act, it has gone above powers given in enabling legislation, it makes unusual or unexpected use of given powers or is unclear or defective) can only report back findings which means its limited and the committee cannot alter regulations or stop law being made

Special controls under Legislative and Regulatory Reform Act 2006

Question 14

What is the legislative and regulatory reform act 2006 and what does it do

Answer 14

Sets procedures for making statutory instruments which are aimed at repealing an existing law to remove burden (financial cost, administrative inconvenience, obstacle to efficiency or a sanction that prevents lawful activity)

Question 15

What must a minister making a statutory instrument do?

Answer 15

Consult various people and organisations such as those representative of interests affected, the welsh parliament in relation to matters upon which the assembly exercises functions or the law commission where appropriate

Question 16

Name three possible procedures that can be followed when laid before parliament

Answer 16

Negative resolution procedure:
After minister recommends this then it must be used within 30day unless P objects. If adopted, won’t become law until it has been laid before p for 40 days

Affirmative resolution procedure: requires both houses of P to approve although the minister who recommended this procedure can still require super affirmative resolution to be used

Super affirmative resolution procedure: minister must have regard to any representations, any resolution of either Parliament House or any recommendations by a committee of either house who are asked to report on the draft order (gives P more control under the Legislative and regulatory reform act 2006)

Question 17

Define ultra vires

Answer 17

Goes beyond powers that parliament granted in enabling act. Not valid law (control by courts)

Question 18

How can the validity of delegated legislation be challenged

Answer 18

Through judicial review preceded or it may arise in a civil claim. Any deemed to be ultra vires is not valid, seen in R v Home sec ex party Fire Brigades Union (1995) where changed made by home sec to criminal injuries compensation scheme were held to have gone beyond power given in crim justice act 1988

Question 19

What will the court presume a statutory instrument doesn’t have the power to do

Answer 19

Made unreasonable regulations (Strickland v Hayes borough council (1896) a by law prohibiting the singing or reciting of any obscene song or ballad an use of obscene language deemed to be ultra vires as unreasonable as it covered private and public places

Levy taxes

Allows sub delegation

Question 20

Reasons for use of delegated legislation

Answer 20

Detailed law (Which P doesn’t have time for) 
Expert knowledge (draws up most effective law)
Local knowledge (councils know their areas)
Consultation (makes sure laws are accurate and workable. Some have to be consulted before created due to their enabling act ie police code or practice 1984, needs to be consolation between many people such as this representing police, general council of the bar and law society)

Question 21

Advantages of delegated legislation

Answer 21

Saves P time (they often don’t have time to consider and debate every small detail)
Access to technical expertise (necessary experts consulted)
Allows consultation (makes sure workable) 
Allows quick law making (P debates take time and can make laws get done quickly)
Easy to amend (can be revoked or amended so law can be kept up to date usually for annual changes ie min wage)

Question 22

Disadvantages to delegated legislation

Answer 22

Undemocratic= takes law making away from those elected
Sub delegation= authority handed down another level, rubber stamping comments
Large volume and lack of publicity= difficult to discover what present law is due to volume. Aggravated by lack of publicity
Difficult wording= often complex and can lead to difficulty understanding