Delegated Legislation*

Question 1

Who produces Orders in Council?

Answer 1

Orders in Council are produced by the Privy Council.

Question 2

What effect do Orders in Council have?

Answer 2

National effect.

Question 3

When are Orders in Council mainly passed?

Answer 3

They are commonly passed during times of emergency or when Parliament isn’t sitting e.g. The Civil Contingencies Act 2004.

Question 4

What other use do Orders in Council have? And under what legislation is this covered?

Answer 4

They are used to transfer roles and responsiblilities between government ministers.

Crown (Transfer of Functions) Act 1946.

Question 5

Who typically creates bylaws?

Answer 5

Local Councils and other public bodies also large companies/organisations. They have local effect.

Question 6

Give an example of a bylaw.

Answer 6

• Railway companies able to impose fines of their services according to the Railways Act 1993 - e.g. Railway Bylaw No 30.
• Local Councils allowed to make bylaws according to the Local Government Act 1972
• National Trust has the ability to make by laws on its properties under the National Trusts Acts 1907 - 1953.

Question 7

Who primarily makes statutory instruments?

Answer 7

Made by cabinet ministers and have national effect.

Question 8

What legislation controls SIs?

Answer 8

Statutory Instrument Act 1946

Question 9

Give an example of a SI.

Answer 9

• 311 SIs have been made by the health secretary to the Coronavirus Act 2020
• Dangerous dogs Act - Dangerous Dogs Designated Types order 1991 No 173 (added two more dog breeds by home secretary).

Question 10

What does ‘Locus Standi’ mean?

Answer 10

Place of Standing. A person must have been directly involved by the law in order to apply for judicial review.

Question 11

To where are judicial reviews applied?

Answer 11

Applications for judicial review are made to the QBD of the High Court.

Question 12

What is Procedural Ultra Vires and give an example.

Answer 12

When the procedures laid out in the enabling act have not been followed. e.g Aylesbury Mushrooms Case.

Question 13

What is the process by which a public body has attempted to use powers not identified within the enabling act? Give an example of this.

Answer 13

Substantive Ultra Vires. For example: R (Ann Summers LTD v. Job Centre Plus - refusal to promote a job - QBD said the decision was irrational.

OR Bromley LBC v. GLC - council could not raise tax to pay for public transport upgrades.

Question 14

Define unreasonableness and give an example of this.

Answer 14

When a public body has acted in a way no reasonable public body would - e.g. Associated Provincial Picture Houses v. Wednesbury Corporation - children were prohibited from going to cinema on Sundays - not unreasonable.

• E.g. 2 - Strickland v. Hayes - banning signing in public was unreasonable.

Question 15

Give an example of when a public body has showed inconsistency with the Human Rights Act 1998.

Answer 15

R (Bono v. HDC) - Right to fair trial was not followed as the tribunal was not impartial. (Article 6 ECHR)

Question 16

List the grounds for judicial review in delegated legislation.

Answer 16

Procedural Ultra Vires
Substantive Ultra Vires
Unreasonableness
Inconsistency with the HRA 1998.

Question 17

Define ‘by laws’.

Answer 17

Laws made by public bodies with local effect.

Question 18

What are statutory instruments?

Answer 18

A law that grants the secretary of state the power to make laws in their area of expertise.

Question 19

What is a ‘commencement order’?

Answer 19

A law passed that brings sections of a statute (passed at an earlier date) into effect.

Question 20

Give 4 advantages of delegated legislation.

Answer 20

Advantages:
- Saves Parliamentary time - Parliament only pass 20-30 Acts annually - 3000-4000 Si’s are passed every year - act takes average of 153 days to be passed.

• Parliament is not the most knowledgeable of local issues - bylaws made under the Local Government Act 1972 can be tailored to certain areas with differing cultures.
• Orders in Council mean laws can be made quickly in emergency - e.g. Civil Contingencies Act 2004.
• Statutory instruments mean Laws can be updated quickly and when necessary - e.g. Coronavirus Act 2020 - however places great power in the hands of one person - little democratic mandate.

Question 21

Give 4 disadvantages of delegated legislation.

Answer 21

Disadvantages:
- Undemocratic to allow bodies other than government to make laws - even undemocratic for ministers to make SIs as they are only elected by those in their constituency.

• Giving law making powers to private organisations may lead to abuse of powers - conflict of interest - councils may wish to increase tax to secure election - e.g. Bromley LBC v. GLC.
• To challenge the delegated legislation through Judicial review is costly - average of £20,000 + - no legal aid available.
• Delegated legislation has been criticised for giving the government excessive power for example, the Legislation and Regulatory Reform Act 2006. It has been criticised for allowing the government to usurp powers from Parliament by effectively granting it the power to unilaterally make laws and rewrite Acts of Parliament.

Question 22

Give an example of substantive ultra vires.

Answer 22

R (McCarthy and Stone) v. Richmond Council - Richmond council had no statutory authority to charge £25 to residents for consulting with its planning officers - public planning was a statutory duty - no public body may levy funds without statutory authority to do so.

Question 23

What are legislative reform orders (LROs)?

Answer 23

A type of statutory instrument that allows the government to remove or reduce burdens that result from legislation.

Question 24

Give an example of a Legislative Reform Order.

Answer 24

Legislative Reform (Private Fund Limited Partnerships) Order 2017.