Delegated Legislation - P3

Question 1

What is delegated legislation?

Answer 1

Delegated legislation is a law made by a person or body to whom Parliament has delegated law making power

Question 2

What is a Parent Act?

Answer 2

The Parent Act creates the framework of the law and then delegates power to others to make more detailed law in the area.

Question 3

Define the two types of legislation.

Answer 3

Primary legislation is an act of Parliament.

Secondary legislation is delegated legislation.

Question 4

Why is delegated legislation necessary?

Answer 4

Parliament does not have the time or expertise to pass every law that is necessary so power is given to other people and organisations to allow those with better local knowledge to pass the laws needed in a given area. It also saves time because it is quicker which is important in a national crisis.

Question 5

What are the three types of delegated legislation?

Answer 5

By-law: local effect.

Orders in council: national effect.

Statutory instruments: national effect.

Question 6

What are by-laws?

Answer 6

By-laws are made by local councils and other public bodies to deal with matters which effect their local area.

Question 7

What is an example of a by-law?

Answer 7

Public corporations, such as train service, are able to impose fines for non-payment of fares.

Question 8

What are statutory instruments?

Answer 8

Statutory instruments are regulations made by the government ministers/departments to implement the provisions made in acts of Parliament.

Question 9

What is an example of statutory instruments?

Answer 9

The home secretary is allowed to add more dangerous dog breeds to the Dangerous Dogs Act 1991 if necessary.

Question 10

What are orders in council?

Answer 10

Orders in Council are made by the King acting on the advice of the Privy Council and are approved in person by the monarch.

Question 11

What are orders in council used for?

Answer 11

Orders in Council can be made quickly and in times
of emergency when Parliament are not sitting. e.g. foot and mouth disease.

Question 12

What is an example of an order in council?

Answer 12

Matters of foreign affairs are often dealt with by Order in Council, as for example the Afghanistan (United Nations Sanctions) Order 2001.

Question 13

What are the advantages of delegated legislation?

Answer 13

Saves Parliament time

Experts can be consulted

Easy to amend

Ministers can have the benefit of further consultation before regulations are drawn up.

Question 14

What are the disadvantages of delegated legislation?

Answer 14

Undemocratic.

Lack of publicity.

Can lead to difficulty in understanding the law.

Question 15

Name one Parliamentary control.

Answer 15

One parliamentary control is the House of Lords delegated powers scrutiny committee. This is effective because it checks bills during the legislative process and reports their findings. However, they do not have the power to change the legislation, only to advise.

Question 16

What is judicial control?

Answer 16

Judicial control is when an organisation or member of the public challenges a piece of delegated legislation in the high court on the ground that it is “ultra vires” (beyond their power).

Question 17

When someone challenges powers under delegated legislation they have to prove they have “locus standii.” What does locus standii mean?

Answer 17

They are directly affected by the delegated legislation.

Question 18

What are the three different types of judicial control that can take place in the high court?

Answer 18

Procedural ultra vires.

Substantial ultra vires.

Unreasonable ultra vires.

Question 19

What is procedural ultra vires? (Judicial controls).

Answer 19

When the body has the power to create DL but they did not follow the correct procedure.

Question 20

What is an example case of Procedural ultra vires? (Judicial controls).

Answer 20

Aylesbury Mushroom case, the minister didn’t ask the mushroom growers association when delegated legislation relating to them was made.

Question 21

What is substantial ultra vires? (Judicial controls).

Answer 21

When the body has gone beyond its powers or done something it never had the power to do.

Question 22

What is an example of substantial ultra vires? (Judicial controls).

Answer 22

R v Secretary of State for Education ex parte NUT – the Minister went beyond the powers given by the Education Act by changing the pay for teachers.

Question 23

What is unreasonable ultra vires? (Judicial controls).

Answer 23

When the law is so unreasonable that no public body will really do it.

Question 24

What is an example of unreasonable ultra vires? (Judicial controls).

Answer 24

Strickland 1896, Worcestershire CC made it an offence to use any obscene language in any public place which went beyond the scope of the Parent Act.

Question 25

What is the Affirmative Resolution Order? (Parliamentary controls).

Answer 25

When a Statutory Instrument laid must be actively approved by both houses of Parliament.

Question 26

What is the Negative Resolution Order? (Parliamentary controls).

Answer 26

The Statutory Instrument will become law unless it is rejected by the UK Parliament within 40 days.

Question 27

What is Super Affirmative Resolution? (Parliamentary controls).

Answer 27

This is required for Statutory Instruments made under the Legislative and Regulatory Reform Act 2006 and means the UK Parliament must expressly approve it.

Question 28

What is consultation? (Parliamentary controls).

Answer 28

This is where the Enabling Body has to consult with interested parties who will be affected by the legislation.