delegated legislation Flashcards
how are SI’s made
SI’s aren’t subject to debate in either house and don’t have to follow open procedures. SI’s are often introduced to bring an act into force or to introduce detailed rules that hadn’t been debated in either house. often introduced by a government minister using discretionary powers that have ben given by an act.
what powers are delegated in proceeds of crime act 2002?
the act gave powers to confiscate the benefits of crime from convicted criminals, now available for drug related crimes, non-drug indictable offences and certain summary offences. only available following a conviction- recovers money and benefits obtained from the criminal conduct.
which SI’s amended the Proceeds of Crime Act
introduced in 2009, proceeds of crime act 2002 order 2009.
what is the enabling act?
an act created by parliament in order to delegate its power to another body and the resulting legislation can take one of three forms.
who makes SI’s
government ministers
who makes orders in council
the privy council
who makes bylaws
councils and public corporations
give an example of a SI that can be used to amend an existing act of parliament
national minimum wage (amendment) regulations 2016. amended minimum wage act 1998 to increase the amount paid to include a ‘national living wage’ of £7.20
give an example of an SI that can be used for commencement order: bring an act into force
coroners and justice act 2009 (commencement No. 10) order 2012. the use of live video links at a preliminary hearing in a magistrates court where the accused is I police detention at a police station
true or false SI’s can be used to add details to acts
true
give an example of SI’s being used to comply with EU directives
money laundering (amendment ) regulations 2012 amended the money laundering regulations 2007to (among other things) change the definition of ‘estate agents’ to include those selling property outside the UK
approximately how many SI’s are made a year
3500
give an example of an order in council used to transfer the responsibilities between Government departments
Moving powers of Welsh office to Welsh assembly- National Assembly of Wales (transfer of functions) order 1999
what are orders in council used for? (7)
- transfer responsibilities between government departments,
- bring acts of parliament into force
- comply with EU directives
- deal with foreign affairs
- deal with national emergencies under the civil contingencies act 2004 when parliament is not sitting and the emergency powers act 1920
- alter the number of judges in the supreme court under the constitutional reform act 2005
- amend acts
give an example of an order in council used to deal with national emergencies under the civil contingencies act 2004 when parliament is not sitting and the emergency powers act 1920
during full crisis 2000- energy act 1976 (reverse powers ) order 2000
give an example of an order in council used to deal with foreign affairs
Afghanistan (UN sanctions) order 2001- offence for anyone to pass funds to Osama Bin Laden or the Taliban
give a few examples of what Bylaws regulate
traffic control, parking restrictions, drinking in public places
what can SI’s be used to do? (4)
- amend existing acts of parliament
- commencement orders: bring an act into force
- add details to acts
- comply with EU directives
give an example of a Bylaw made by local authorities
environment agency wales rod fishing bylaw 2012- regulates where and what you can fish on the river wye
give an example of a bylaw used by public corporations for matters involving the general public
train companies under the transport act 1993 regulating conduct on the railways use of offensive language , buying tickets etc.
which type of law is most likely to be used in this situation: the transfer of responsibilities for international development from the foreign office to a newly created ministry.
privy council - orders in council
which type of law is most likely to be used in this situation: a law re-routing a public footpath
Bylaws- local authorities
which type of law is most likely to be used in this situation: laws dealing with the storage of dangerous chemicals
statutory instruments- government ministers
which type of law is most likely to be used in this situation: an increase in the maximum penalty for speeding
statutory instruments- government ministers
which type of law is most likely to be used in this situation: an entirely new kind of criminal offence, aimed at preventing stalkers
act of parliament
explain the judicial controls in relation to the control of Delegated Legislation
DL can be challenged in the courts if it goes beyond the powers that parliament granted in the enabling act. if this is so the DL will be declared as Ultra Vires(beyond the powers of). This is usually done through a process known as judicial review where an applicant can ask the QBD of the HC to grant request to look at legality of the piece of DL. this decision can then be appealed to CoA +/ SC
explain procedural Ultra Vires with an example
A court may find a piece of DL is ultra vires on the grounds that a minister had failed to follow a procedural requirement as laid out in the enabling act. E.G. Aylesbury mushroom case (1972) minister did not consult the mushroom growers association and was required to by the enabling act
explain substantive Ultra Vires
concerns whether the content of the DL is within the limits set out by the enabling act.
give two examples of substantive ultra vires
- R v See. of state for social welfare of immigrants(1996) - minister used SSA 1992 to prevent asylum seekers from receiving social benefits. the SSA was meant to provide extra rights to asylum seekers not remove them therefore minister didn’t have power.
- customs and excise V care and Deeley 1962 - the financial act gave customs and excise power to make what ever laws they wanted this was ultra vires as it gave them more power than parliament
explain the term locus standi
the process of judicial review by the QBD of the HC relies on someone bringing a case because they are affected by the law, it is the right or capacity to bring an action or to appear in a court
explain a case that was declared ultra vires on the basis of unreasonableness
R v Swindon NHS Trust 2006- access to a cancer drug was refused and this was deemed to be unreasonable by the NHS Trust because she would have been able to access the drug in a neighbouring trust.
which case was ultra vires on the basis of unreasonableness established in
picture houses v Wednesbury corporation 1948
what is the other reason to SI’s being declared void
SIs can be declared void if they conflict with EU law and judges have the power to challenge compatibility under Human rights act 1998
which section of the human rights act states courts have the power to make a ‘declaration or incompatibility’
S4 human rights act 1998
what is meant by the term ‘declaration of incompatibility’
this means that an act/ DL has violated human rights in some way
give examples about the effectiveness of the controls on DL in parliament
- commons select common procedure 2000 “SIs do not receive enough scrutiny in proportion to its merits”
- only affirmative procedure allows for debate e.g. amendments under PACE 1984 and regulative procedure often includes significant changes
- time and resources are too stretched to review DL
give examples about the effectiveness of the controls on DL in the courts
- depending on a person challenging the validity of the law with determination and resources e.g. R(Haw) v Home Secretary 2005
- therefore some DL is ultra vires but is not challenged and remains in force because no locus standi or members of the public do no want challenge- expensive!
- S-O-P (separation of powers)- judiciary’s increased power from the Human rights act 1998 can challenge any public body.
list some advantages for DL
- it saves parliament time
- it can be passed quickly in emergencies
- it uses specialist knowledge (and parliament doesn’t need to fill in the detail)
- it is democratic and parliament can control its use
- its easier to amend to reflect current circumstances
list some disadvantages of DL
- using DL is undemocratic
- it contradicts the separation of powers principle
- there is a risk of sub-delegation
- there are no enough effective controls (affirmative, parliamentary procedure, judicial procedure)
- lack of publicity
- expert knowledge
