Delegated Legislation (SA P2 CRIMINAL COURTS AND LAY PEOPLE)

Question 1

What is delegated legislation?

Answer 1

Parliament delegates some of its law-making powers to secondary bodies allowing them to make laws on Parliament’s behalf (does not have the time/expertise to deal with every new law that’s required)

Question 2

How does parliament delegate?

Answer 2

• An act of parliament is passed giving the secondary body the power to create new laws
• Known as ‘Enabling Acts’ or ‘Parent Acts’
• Gives them the right to create one of the following types of delegated legislation: Order in Council, Statutory Instrument, By-Law

Question 3

e.g. enabling act

Answer 3

• Police and Criminal Evidence Act 1984
• Gives the Home Secretary powers to make Codes of Practice for use of police powers

Question 4

What are Orders in Council?

Answer 4

• Drafted by government departments and approved by the King and Privy Council (made up of prime minister and other leading members of government)
• Allows gov to make laws without going through parliament
• There must be an enabling act to allow the Privy Council to make orders in council on the particular topic

Question 5

What matters can Orders in Council be made on?

Answer 5

• Transferring responsibility between gov departments
• Bringing Acts (or part of acts) of Parliament into force
• Dealing with some aspects of foreign affairs
• Making law in times of national emergency
• Amend or update existing law

Question 6

What are statutory instruments?

Answer 6

Ministers and gov departments are given authority (under enabling Acts) to make regulations for areas under their particular responsibility

Question 7

How many statutory instruments can be made a year?

Answer 7

up to 3000

Question 8

e.g statutory instruments

Answer 8

• Building regulations 2010 (made under authority of Building Act 1984)
• Police Codes of Practice (made under authority of Police and Criminal Evidence Act 1984)
• National Minimum Wage Act 1998
• Lockdown regulations (made under authority of Coronavirus Act 2020)

Question 9

What is a By-law?

Answer 9

Made by local authorities to cover matters within their own area

Question 10

What is a local by-law?

Answer 10

• Created under Local Government act 1982
• Mostly involve traffic control, banning drinking of alcohol, when dogs can be exercised on a beach etc

Question 11

What is a technical by-law

Answer 11

Made by public corporations and certain companies for matters within their jurisdiction which involve the public

Question 12

Reasons for delegated legislation (SCELD)

Answer 12

• Speed
• Consultation
• Expert knowledge
• Local knowledge
• Detailed law

Question 13

adv delegated legislation (TAASE)

Answer 13

• Technical expertise
• Allows consultation
• Allows quick law making
• Saves parliamentary time
• Easy to amend

Question 14

disadv delegated legislation (SULLD)

Answer 14

• Sub-delegation
• Undemocratic
• Large volume/lack of publicity
• Length/expense of judicial reviews
• Difficult wording

Question 15

Control by parliament of delegated legislation

Answer 15

• Enabling Act: who can make, amend or repeal the law
• Affirmative resolutions: SI will not become law unless specifically approved by Parliament (by vote) witching 28-40 days
• Negative resolutions: SI will become law unless rejected by Parliament within 40 days
• Scrutiny committees: scrutinised proposals to delegate law making power, or lawful use/impact of DL
• Questioning of gov ministers: questioned by MPs in HOC on work of their departments

Question 16

What grounds can DL be challenged on?

Answer 16

• Substantive ultra vires: secondary body has gone beyond lowers granted to it, e.g Fire Brigades Union Case 1995
• Procedural ultra vires: secondary body failed to follow the correct procedure in the enabling Act, e.g Aylesbury Mushrooms Case 1972
• Unreasonable: DL so unreasonable that no reasonable authority could ever come to it, e.g Wednesbury Case 1948