DELEGATED LEGISLATION

Question 1

True or false, Parliament legislates both directly and indirectly

Answer 1

TRUE

Question 2

how does parliament legislate directly

Answer 2

Acts of Parliament (also known as primary legislations

Question 3

how does parliament legislate indirectly

Answer 3

using delegated or subordinate legislation (also known as secondary legislation)

Question 4

How are secondary legislation made

Answer 4

made by a subordinate authority (E.g government ministers or local authority) pursuant to a law-making power given to it by an Act of Parliament

Question 5

what are acts which provide a subordinate authority commonly referred to as

Answer 5

Enabling or Parent Act

Question 6

Secondary legislation made by a minister is usually in what type of form?

Answer 6

A statutory instrument (i.e. legislative document containing rules - subordinate legislation - made under the power conferred by an Act of Parliament)

Question 7

what does secondary legislation made by a minister usually contain

Answer 7

a set of regulations applicable to the particular subject area (e.g. road traffic regulations

Question 8

What type of form are secondary legislation made by a local authority usually in the form of?

Answer 8

By-laws (E.g. those which regulate the use of public parks and amenities)

Question 9

what is an example of a delegated legislation

Answer 9

European Communities Act 1972

Question 10

What act helps define what a statutory instrument is

Answer 10

Statutory Instruments Act 1946 s.1

Question 11

How is a statutory instrument defined

Answer 11

S1(1) - where by this act… power to make, confirm or approve orders, rules, regulations or other subordinate legislation is conferred on His Majesty in Council… then:
a) in the case of a power conferred on His Majesty, to be exercisable by ORDER IN COUNCIL;
b) in the case of a power conferred on a MINISTER OF THE CROWN, to be exercisable by statutory instrument…
any document by which that power is exercised shall be known as a ‘statutory instrument’…

Question 12

Where in a statutory instrument will state the authority in which it was made under

Answer 12

the preamble

Question 13

who usually drafts SI’s

Answer 13

normally drafted by lawyers within the relevant government department

Question 14

what does an SI usually have

Answer 14

the force of law as an act of parliament

Question 15

what is an SI not subject to

Answer 15

not subject to the same parliamentary stages of a bill but has two procedures

Question 16

What are the two procedures

Answer 16

negative and affirmative procedure (depending of the provisions of the parent/enabling act) under the statutory instrument act 1946

Question 17

What is the negative procedure

Answer 17

where an SI is laid down before parliament, becomes law (usually wihtin 40 days) - UNLESS, either house (commons or lords) passes a motion calling for its annulment within the 40 days - if neither house passes a motion the SI is considered ‘approved’ bu parliament indirectly

Question 18

what is the affirmative procedure

Answer 18

where an SI is to become law, both houses must pass a motion approving it (usually within 28 days) i.e. the measure must be discussed in parliament before it can become law

Question 19

What is regardless of both negative and affirmative procedures?

Answer 19

No amendment by either house, i.e. approval or dismissal only

Question 20

what are orders in council

Answer 20

a form of delegated legislation made by the Privy Council in the exercise of powers conferred by a parent act, (i.e. power exercised by the ‘Queen in Council’.)

Question 21

how are orders in council treated as

Answer 21

Procedurally, they are treated as statutory instruments and therefore subject to the statutory instruments act 1946.

Question 22

What act is an example of the use of orders in council

Answer 22

European community act 1972

Question 23

What are By-laws

Answer 23

Laws made by local authorities, public corporations or other companies vested with statutory powers

Question 24

how are by-laws effective

Answer 24

they need to be firstly confirmed by the secretary of state

Question 25

What act can be used to show the effectiveness of by-laws

Answer 25

Local government act 1972

Question 26

What does the case of Boddington v British Transport POlice say

Answer 26

B was convicted of smoking in carriage where smoking was prohibited contrary to bylaw
b argued that the decision to post notices banning smoking in all carriages of was ultra vires to its powers ti bring bylaw into force
the court held that it was not open to b to raise that specific public law defence in the criminal proceedings brought against him

Question 27

who are by-laws binding to

Answer 27

On all persons, areas or organisation to which it relates

Question 28

what are the reasons for delegated legislation

Answer 28

lack of parliamentary time, the complexity of subject matters, time of emergency - speed/flexibility

Question 29

Why is the lack of parliamentary time a benefit

Answer 29

Parliament has become involved with a lot e.g. public health, housing, education, safety at work etc.
Parliament had neither time nor the energy to enact all the legislation necessary for the detailed regulation of these activites.
Lord thring said - leaving detailes to be settled departmentally

Question 30

what is the complexity of subject matters a benefit

Answer 30

pubic interest not best served by legal rules whihc related only imperfectly to the matters to which they were directed.
usually MPs reluctant to legislate specifically on matters which they do no understand

Question 31

why is the time of emergency a benefit

Answer 31

During wars, terrorism, natural disasters, those in government have to act quickly and are best placed to judge what is required in terms of legislation for the protection of the state and its population

Question 32

why is the time of emergency in the idea of speed a benefit

Answer 32

regulations may be made more quickly than acts of parliament. thus appropriately in terms of the legal rules needed to deal with pressing and unforeseen circumstances

Question 33

why is the time of emergency in the idea of flexibility a benefit

Answer 33

impractical and time-consuming if parliament had to pass an act every time it was decided to make a minor alteration (prescription chargers, eligibility to legal aid, etc.)

Question 34

what are the disadvantages of delegated legislation

Answer 34

alteration of acts of parliament, scrutiny by parliament, scrutiny by courts, misuse of delegated legislation

Question 35

why is the idea of alteratin an act of parliament a disadvantage

Answer 35

An act might contain a clause which gives to the subordinate law-maker, usually a minister, the power to make legal rules which alter either the terms of the enabling act itself or those in other acts of parliament

Question 36

why is scrutiny by parliament considered to be a disadvantage of delegated legislation

Answer 36

not all delegated legislation is subject to a close parliamentary scrutiny, nor does it attract great public awareness

Question 37

why is scrutiny by courts a disadvantage of delegated legislation

Answer 37

usually by judicial review, but: effectiveness of judicial control might be imparied by the owrds of the enabling act e.g.: the minister may make such regulations as he thinks fit

Question 38

what case proves that the misuse of delegated legislation

Answer 38

Kruse v Johnson

Question 39

what happened in the case of kruse v Johnson

Answer 39

County council, claiming to act under their statutory powers, made a by law prohibiting from playing music or singing in public etc after being requested by any constable, or an inmate of such house

Question 40

what did lord russell say in the case of kruse v johnson

Answer 40

If partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, parliament never intended to give authority to make such rules they are unreasonable and ultra vires

Question 41

what other case other than kruse v johnson proves the misuse of delegated legislation

Answer 41

raymond v honey

Question 42

what happened in the case of raymond v honey

Answer 42

R, a prisoner, was engaged in legal proceedings when he wrote to his solicitors - the governor, in exercise of his powers, read the letter and decided that it should not be sent to the solicitor

Question 43

what did the courts hold in the case of raymond v honey

Answer 43

there was nothing int he prison act 1952 that conferred powers to make regulations which would deny, or interfere with the right of a convicted prisoner to have unimpeded access to the courts.

Question 44

what happened in the case of Ahmed v HM treasury

Answer 44

The orders provided for the freezing, without limit of time, of the funds, eonomic resources and financial services available to persons suspected of financing/preparing an act of terrorism - the effect of the orders was to deprive those persons of all resources

Question 45

what did the court held in the case of ahmed v hm treasure

Answer 45

by introducing the reasonable suspicion test as a mean of giving effect to the relevant security council resolution, the treasury had exceeded its powers