Delegated Legislation Flashcards
What are the reasons/advantages for/of delegated legislation? (5)
- Saving Parliament time
- Dealing with complex and technical issues (e.g health and safety regulations)
- Quicker and easier to amend and update than primary legislation
- Able to respond quickly to emergencies
- Allows for local variation to meet local need
Why do we use delegated legislation? (4)
- Parliament doesn’t have the TIME to debate every detail of every Act
- Parliament will not always have the relevant EXPERTISE to deal with a particular issue
- Delegated legislation is EASIER TO CHANGE, which allows a quicker response to changing circumstances
- Parliament CAN’T ALWAYS RESPOND enough in emergencies
What are the disadvantages of delegated legislation? (4)
- Undemocratic: giving power to unelected individuals takes the decisions away from the democratic process
- Risk of sub-delegation. Legislation is sometimes made by people other than those who have been given the power to do so
- Lack of publicity. Although published, they tend to not be under the same public scrutiny as Acts
- Large volume. Keeping track can be difficult and delegated legislation outnumbers Acts of Parliament 5:1
What does the Scrutiny Committee do? What does it review? Who does it refer to? What does it act as? Why? Who does it report to? At what stage?
- Reviews technical merit of all draft statutory instruments
- Refers to Parliament those giving cause for concern (e.g unusual or unexpected use of the power)
- The Committee acts as a filter, so that Parliament only needs to consider the small number of instruments referred
- Reports its findings to the House of Lords before the Committee Stage of the Bill
What happened in R v Secretary of State for Educational Employment ex parte National Union of Teachers (2000)? (2)
- A high court judge ruled that a statutory instrument setting conditions for appraisal and access to higher rates of pay for teachers was beyond the powers given under the Education Act 1996
- In addition, the procedure used was unfair, as only four days had been allowed for consultation
What happened in R v Home Secretary ex parte Fire Brigade’s Union (1995)?
- Changes made by the Home Secretary to the Criminal Injuries Compensation Scheme were held to have gone beyond the power given to him in the Criminal Justice Act and so were ultra vires
What is delegated legislation? Where does it come from? (3)
- Delegated legislation is a law made by someone other than Parliament, but with the authority of Parliament
- This is given to them by a “Parent Act” (also called an Enabling Act), which creates the framework for the law
- It stems from the Local Government Act 1972
The Joint Select Committee on Statutory Instruments can flag up a problem when delegated legislation does what? (5)
When the delegated legislation:
- Tries to impose a tax
- Has an unintended effect
- Is ultra vires
- Makes unintended use of powers to make the delegated legislation
- Is badly drafted
What are by-laws? Who are they introduced by? When are they used? Passed under what Act? Example? (4)
- Introduced by local authorities, or large bodies authorised to do so (such as the Rail Authority)
- Only involve matters of local concern
- Generally passed under the Local Government Act (1972)
- An example could be the ban on smoking on the London Underground
What does the Joint Select Committee on Statutory Instruments do?
- Evaluates all delegated legislation on a technical level
Describe the two types of ultra vires and give an example case for each
- Substantive ultra vires - when the subject matter is outside the scope of power (A-G Fulham Corp [1921])
- Procedural ultra vires - subject matter intra vires, but serious failure to comply with a mandatory procedural requirement - e.g failure to consult (Agricultural Training Board v Aylesbury Mushrooms [1972])
What are Orders in Council? What are they introduced under? When are they used? (2)
- Introduced by the Queen or Privy Council in times of emergency under the Emergency Powers Act 1920
- Only used in times of emergency when Parliament is not sitting
Give an example of an Enabling Act. What did it do?
- The Disability Discrimination Act 1995 which gave the secretary of state powers to make regulations
Why must delegated legislation be subject to effective checks and controls? (2)
- To ensure accountability and prevent misuse
- Delegated legislation results from transferring law-making powers from the legislature to the executive so checks and controls are important
What happened in the Aylesbury Mushroom Case (1972) (2)
- The Minister of Labour had to consult any organisation representative of substantial numbers of employers engaging in the activity concerned
- His failure to consult the Mushroom Growers’ Association (which represented about 88% of all mushroom growers) meant that his order establishing a training board was procedural ultra vires
