Delegated Legislation (DL)

Question 1

Delegated Legislation (DL)

Answer 1

P gives someone else (delegates) the power to make some law (legislation)

Question 2

Enabling Act (EA)

Answer 2

Created by P
Gives guidelines on when public bodies can make laws + P can choose what powers to delegate + which Government Ministers to give powers to
- P can specify how to make the law + where the DL applies
- P can repeal the EA, instantly removing the power of the delegated body to make law
Primary legislation
Example: PACE ‘84

Question 3

Types of DL

Answer 3

Orders in Council
By-laws
Statutory instruments

Question 4

Orders in Council

Answer 4

Made by the Monarch and Privy Council
Used to:
- Amend/update laws
- Transfer responsibility between Government departments
- Make law in times of emergency when P isn’t sitting (Civil Contingencies Act 2004)

Question 5

Privy Council

Answer 5

Senior Government ministers (from HoC and HoL) that meet with the Monarch

Question 6

Orders in Council Example

Answer 6

The Misuse of Drugs Act 1971 (Amendment) Order 2008
This was an order in council that amended the Misuse of Drugs Act and reclassified cannabis as a Class B drug (previously C)

Question 7

By-laws

Answer 7

Made by local authorities e.g. County Councils or large public bodies authorised to do so (e.g. rail track, London Underground)
They only apply to the areas over which the council/public body has control

Question 8

Why do By-laws exist?

Answer 8

Quicker for the public bodies/councils to make the decisions, and they should know the local area/situations better than P would

Question 9

By-laws examples

Answer 9

traffic regulations
parking
behaviour in public i.e. drinking alcohol on the streets

the ban on smoking on the London underground

Question 10

Statutory Instruments

Answer 10

Made by Government departments and Ministers - these laws are known as Rules, Regulations or Orders and apply nationally

They can only be made for their area of responsibility e.g. Health Secretary can only make SIs relating to health matters

Question 11

How many Statutory Instruments are made a year?

Answer 11

around 3000

Question 12

Why are Statutory Instruments used?

Answer 12

Because the departments + ministers will have expert knowledge on the situation they are dealing with hopefully

Question 13

Statutory Instruments Example

Answer 13

Police Codes of Practice

MoJ gets to set rules about practices such as stop and search, arrest and detention

He has the authority to make this SI due to PACE ‘84 (an Enabling Act)

Question 14

Reasons for DL

Answer 14

• P don’t have the TIME to debate every detail of every Act - more laws can be made more quickly
• P won’t always have the necessary EXPERTISE to make the best laws - P are made up of a lot of different people whereas SIs are made specifically by people with expertise in their field
• P may not live in or know of issues in LOCAL AREAS - they only consider national issues. By-laws are made by people who live or work in smaller areas, and so can make laws specific to that area
• DL can be CHANGED OR MADE MORE EASILY allowing quicker response to changing circumstances

Question 15

Controls by Parliament

Answer 15

Enabling Act for SIs
–> negative or affirmative resolutions

Orders in Council and by-laws are largely unregulated

Question 16

Negative Resolution

Answer 16

most common procedure

SI is proposed and will become Law unless rejected by P within 40 days

no debate

Question 17

Affirmative Resolution

Answer 17

less common than the negative procedure - usually applies to important areas of law

debate will follow the introduction and both Houses of P must expressly approve the SI before it can be enacted e.g. changes to the police code in PACE must be approved before they come into force

P cannot amend the SI - it can only approve, or withdraw/annul it

Question 18

Outline of Negative/Affirmative Resolution

Answer 18

Negative:
SI comes into force unless denied by a negative resolution in P

Affirmative:
SI only comes into force if approved by positive resolution in P

Question 19

Scrutiny Committee

Answer 19

Reviews and checks ALL SIs
Can draw the attention of both HoP to any SIs which need further consideration

Reasons for referring:
- SI imposes a charge/levy
- SI applies retrospectively (always banned in EAs)
- SI exceeds powers given in EA
- (SI makes unexpected or unusual use of powers)
- (SI is unclear or defective in some way)

They cannot alter any SIs, only refer them to P

Question 20

Controls by the Courts

Answer 20

Judicial Review

Question 21

Judicial Review

Answer 21

DL can be challenged in court by a person with sufficient standing or interest in a case

If the court hearing the case (QBD) agrees with the challenge, it can hold the DL to be ultra vires

Question 22

‘Ultra Vires’

Answer 22

this makes the DL void and means it doesn’t apply

Question 23

3 reasons for something to be declared ‘ultra vires’

Answer 23

• goes beyond powers given in EA
• DL didn’t follow the correct procedure when being made
• a decision under DL is unreasonable

Question 24

Ultra vires Cases

Answer 24

R v Home Secretary ex parte Fire Brigades Union

Agricultural Training Board v Aylesbury Mushrooms

R (Rogers) v Swindon NHS Trust

Question 25

R v Home Secretary ex parte Fire Brigades Union (Ultra Vires)

Answer 25

Home Secretary was allowed to decide the date to introduce the CICS

but he changed the scheme as well as deciding the date to introduce it

He did more than he was allowed to under the EA

Question 26

Agricultural Training Board v Aylesbury Mushrooms (Ultra Vires)

Answer 26

D was meant to consult any group representing a large amount of mushroom growers, but failed to consult a group representing 85% of them

Question 27

R (Rogers) v Swindon NHS Trust (Ultra Vires)

Answer 27

The court said it was unreasonable to give different medical tratment to people who had the same medical needs