Delegated Leglisation

Question 1

When can DL be made?

Answer 1

Where explicit provision in primary legislation allows it.

Question 2

Most common kind of DL?

Answer 2

Statutory Instruments

Question 3

What must all SIs contain?

Answer 3

Reference to specific clauses in AoPs that give govs vires to draw up delegated leg.

Question 4

Are DLs debated?

Answer 4

Most not debated at all – if there’s debate it’s strictly limited to 90mins.

Question 5

What’s an Order in Council?

Answer 5

A type of SI - like regulations

Question 6

What’s different about Orders in Council vs SIs?

Answer 6

They’re signed by minister before undergoing parliamentary procedure and must be approved at monthly meeting of Privy Council.

Question 7

Three justifications of DL?

Answer 7

1. Necessary/useful as Parli doesn’t have time/knowledge to make specialist bodies of rules.
2. Some subjects are too technical to justify parli’s attention.
3. Usually more flexible and allow efficient amendments.

Question 8

As in what is the power that enables DLs to be used

How are DLs granted?

Answer 8

Enabling provision – gives powers to ministers to decide when to bring into force sections of an AoP.

Creates a power, not a duty, to bring an AoP into force – Sec of State can consider when to bring into force for as long as they want but can’t undermine the obligation.

Question 9

Tension between DL and Ps?

Answer 9

Parli decided law should be X but never brought into binding law because the gov decides otherwise.

Question 10

Tension between DL and RoL?

Answer 10

Openness and accessibility of law impacted if people struggle to identify whether provision in AoP brought into force or not.

Question 11

How many pieces of legislation needed reviewing after Brexit?

Answer 11

2.4k

Question 12

How was the 2.4k pieces of legislation post-Brexit reviewed?

Answer 12

Ministers given delegated law-making powers to do so

Question 13

2 criticsms

HofL Select Comms disapproval of allowing ministers the power to review legislation post-Brexit

Answer 13

1. Gave unprecedented powers to ministers/public bodies to change EU law retained in domestic law.
2. Law making powers of ministers subject to little parli scrutiny.

Question 14

What is a Henry VIII clause?

Answer 14

Delegated leg can be used to amend/repeal AoPs.

Question 15

Rationale behind Henry VIII clauses?

Answer 15

They’re useful for relatively small-scale fine-tuning to reforms introduced by an AoP without need to create new Bill.

Question 16

Four steps

Process of making DL?

Answer 16

1. Skeleton Bill enables many DLs to be implemented
2. Drafting decentralised because done by lawyers in gov departments.
3. Minister in relevant dept then signs text produced – either junior minister or Sec of State.
4. All SIs not amendable by MPs or Peers.

Question 17

What did the Donoughmore Committee say about skeleton legislation?

Answer 17

Critics of skeleton legislation argued the practice had passed all reasonable limits and allowed the Exec to invade Parliament.

Question 18

What’s the affirmative procedure?

Answer 18

Enabling provision in AoP may specify the SI is subject to the affirmative procedure – i.e. the draft SI must be approved by Parli but it can’t be amended, only disapproved.

Applies to 1/5 SIs.

Question 19

Court’s judgement in Carltona v Commissioners of Works?

Answer 19

Held civil servants acted in the name of their ministers but doesn’t decide that what the civil servant knows is in law the minister’s knowledge, regardless of whether the minister actually knows it.

Question 20

Three points about ministers

Judgement in National Association of Health Stores?

Answer 20

A minister or civil servant isn’t lawfully responsible for a decision on a matter they knew nothing about just because 1+ officials in the dept knew about it.

In reality, ministers/authorised civil servants are usually properly briefed about the decisions they have to take and take time considering it.

The amount of evidence they must know must be enough to ensure that nothing that is necessary (i.e. legally relevant) for them to know is left out.

Question 21

Enrolled Act Rule?

Answer 21

Courts don’t adjudicate on allegations of procedural irregularities in legislative process for AoPs but do for DLs

Question 22

Are DLs subject to JR?

Answer 22

All grounds of JR are potentially applicable to DL

Question 23

Re Order in Council made against Pakistani people

Judgement in Javed?

Answer 23

Order in Council approved by both Houses, but the CofA quashed it as the Sec of State acted irrationally, thus ultra vires

Question 24

Terrorism

Issue in Ahmed and Ors?

Answer 24

UKSC reviewed lawfulness of two pieces of delegated leg designed to freeze the assets of suspected terrorists.

Question 25

Judgement in Ahmed and Ors?

Answer 25

The orders were ultra vires as out scope of enabling provision -> it wasn’t sufficiently wide to permit ministers to interfere with fundamental rights to fair process.

Question 26

Lord Phillips in Ahmed and Ors?

Answer 26

Issue is the extent to which Parli, by the Act, delegated to the exec the power to legislate, i.e. the SoP.

Question 27

Parli’s response to Ahmed and Ors?

Answer 27

Parli passed an AoP that permits such freezing of assets.

Question 28

Main issue about who controls the legislative process?

Answer 28

1. Some argue Parliamentarians who form gov in the HofC have too much power over Parliamentarians who don’t form gov, i.e. backbenchers.
2. Some argue the HofC have too much power over the HofL

Question 29

What timetable does the Gov control?

Answer 29

Timetable by which bills are scrutinised in HofC – often resulting in bills rushed through without proper scrutiny.

Question 30

Two-fold in relation to legislative process

What are the consequences of the reforms to the HofL?

Answer 30

1. Fewer Tory hereditary peers and robust appointment system resulted in Lords growing in confidence and ability to scrutinise bills.
2. Gov with majority in HofC may control that chamber but no automatic gov majority in HofL when voting on bills.