Delegated Legislation

Question 1

What is the difference between an 8 marker and 12 marker in DL?

Answer 1

8 Marker - Explain DL

12 Marker - A’s and D’s of DL

Question 2

What are the 3 types of DL?

Answer 2

1. Orders in Council
2. By-Laws
3. Statutory Instruments

Question 3

What are Orders in Council?

Answer 3

DL made by the queen and privy council (senior govt ministers). It is quicker to be made than convening Parliament, particularly in times of emergency. Orders in Council are used to make and amend law, especially in times of emergency. They can: amend/update laws, transfer responsibility between govt departments, give effect to EU directives, make law in times of emergency.

Question 4

What is an example of an Order in Council?

Answer 4

The Misuse of Drugs Act 1971 (Amendment) Order 2008 - It reclassified cannabis as a class B drug (previously a class C)

Question 5

What are By-Laws?

Answer 5

DL made by local authority (such as council or public bodies), and apply only to the (geographical) area they cover. They are quicker to make and local authority has local knowledge.

Question 6

What is an example of a By-Law?

Answer 6

The ban on smoking on the London underground.

They can also deal with issues such as traffic regulations and parking.

Question 7

What are Statutory Instruments?

Answer 7

DL made by govt departments and ministers, and only applies to the area of knowledge that they cover (e.g. health department). Roughly 3000 SIs get made a year. SIs allow experts to make law on their department, meaning they have expert knowledge on the situation.

Question 8

What is an example of an SI?

Answer 8

Police Code of Practice. The minister of justice changed the rules about police practices, such as stop and search. PACE 1984 was the Enabling Act that allowed them to do this.

Question 9

What are the 4 reasons for DL?

Answer 9

1. Parliament don’t have the time to debate ever Act.
2. Parliament will not always have the expertise.
3. Parliament may not know of the specific issues in local areas.
4. DL can be made/changed more easily

Question 10

What are the 5 Parliamentary controls on DL?

Answer 10

1. Enabling Acts
2. Negative resolutions
3. Affirmative resolutions
4. Questioning of govt ministers
5. Scrutiny Committee

Question 11

What are Enabling Acts?

Answer 11

Acts that sets out who can make DL and sets out restrictions. They will: decide powers to delegate, decides which govt ministers to give power to, specifies how they make DL, allows P to repeal the Act at any time, specifies where the law applies.

Question 12

What is negative resolutions?

Answer 12

It’s the most common control. It allows Parliament to reject the SI but, after 40 days, they will automatically become DL. There is no debate on the issue.

Question 13

What is affirmative resolutions?

Answer 13

Less common than negative resolutions. A debate will take place and both Houses must approve the SI for it to be enacted. Parliament cannot amend the SI, only reject it.

Question 14

What is the questioning of govt ministers?

Answer 14

Someone questioning a minister on the new law.

Question 15

What is the Scrutiny Committee?

Answer 15

A committee that reviews all SIs and can draw the attention of Parliament to SIs that need further consideration, they cannot alter SI.

Question 16

Why would the Scrutiny Committee refer an SI to Parliament?

Answer 16

• SI imposes a charge (monetary)
• SI applies retrospectively (this is banned in the Enabling Act)
• SI exceeds powers given in the Enabling Act
• SI makes unexpected or unusual use of power
• SI is unclear/defective in some way.

Question 17

What is Judicial Review?

Answer 17

Where the court can declare the DL ultra vires (void).

Question 18

When would the court declare the DL ultra vires?

Answer 18

1. The DL goes beyond the powers granted by the Parent Act.
2. The DL did not follow the correct procedure.
3. A decision made under DL was unreasonable.

Question 19

What is the case example of the DL going beyond powers granted by the Parent Act?

Answer 19

R v Home Secretary ex parte Fire Brigades Union 1995.
The Home secretary was only allowed to set a date on which the Criminal Injury Compensation Scheme would be introduced. They then made change to reduce the amount of compensation given. Because he went beyond his powers, the court declared it ultra vires.

Question 20

What is the case example of where the DL did not follow the correct procedure?

Answer 20

Agricultural Training Board v Aylesbury Mushrooms 1972.
The Minister of Labour had to consult any group affected by the new regulations for the training of mushroom growers. He did not consult a group but still made the regulation. The court declared the regulation ultra vires due to him not following the correct procedure.

Question 21

What is the case example where a decision made under DL was unreasonable?

Answer 21

R(Rogers) v Swindon NHS Trust.
V had breast cancer and needed to take a specific drug but women were only allowed the drug in ‘exceptional’ circumstances. The court declared the rule was unreasonable due to them giving different treatment to people with the same medical needs, so declared it ultra vires.

Question 22

What are the 4 advantages of DL?

Answer 22

1. Saves Parliament’s time - Health and Safety at Work Act 1974 allowed the Minister of Work and Pensions to make an SI relating to health and safety in work.
2. Specialist knowledge - PACE 1984 allowed the Minister of Justice to set the Police Codes of Practice.
3. Local Knowledge - There may be a problem with excessive drinking in a town and the local council could pass a law to stop this.
4. Numerous Controls - The courts declared the DL from ATB v Aylesbury Mushrooms ultra vires.

Question 23

What are the 4 disadvantages of DL?

Answer 23

1. Undemocratic - An SI was passed by the Minister of Justice (unelected) which restricted immigrant’s right to legal aid.
2. DL can be complex - R(Rogers) v Swindon NHS Trust - the case was technical and very specific.
3. Large volume of DL - The British Airports Authority passed a by-law banning tennis racquets on planes and an unaware passenger was fined.
4. Control are not always effective - nearly 3600 reviews were requested but only 184 cases went ahead and the govt lost 40% of these.