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Paper 3 Contract Law > ELS-Delegated Legislation > Flashcards

ELS-Delegated Legislation Flashcards

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1
Q

What is delegated legislation?

A

When Parliament gives power to another body to pass laws.

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2
Q

What did Parliament pass which gives power at a specified point to certain groups for delegated legislation?

A

Enabling Act

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3
Q

3 things that can be made by the power given by the Enabling Act.

A
  1. Orders in Council
  2. Statutory instruments
  3. By-law
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4
Q

Who are Orders in Council made by?

A

Privy Council

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5
Q

Who are statutory instruments made by?

A

Government ministers

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6
Q

Who are by-laws made by?

A

Local authorities

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7
Q

Examples of people who are members of the Privy Council.

A

Government ministers
Former government ministers

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8
Q

Who were the Privy Council historically?

A

Monarch’s key advisors

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9
Q

Who replaced the Privy Council as the more important monarch’s key advisors?

A

the Cabinet

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10
Q

Following the Enabling Act, what 3 powers do the Privy Council have?

A
  1. Transferring power between government departments e.g., Ministry of Justice used to be part of Home Office.
  2. Giving legal power to EU directives
  3. Under the Civil Contingencies Act 2004, can make laws in emergency situations when Parliament isn’t sitting.
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11
Q

Under what Act does the Privy Council have the power to make laws in emergency situations when Parliament isn’t sitting?

A

Civil Contingencies Act 2004

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12
Q

Give an example of a law the Privy Council passed.

A

Misuse of Drugs Act gave them the power to change the categorisation of drugs.
2003 = changed cannabis from Class B to Class C
2008 = changed it back again

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13
Q

What is a Statutory Instrument?

A

Form of legislation which allows the provisions (term) of an Act of Parliament to be subsequently brought into force or altered without Parliament having to pass a new Act

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14
Q

What are statutory instruments also referred to as?

A

Secondary, delegated or subordinate legislation.

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15
Q

What powers do ministers for individual departments have the power to do in relation to statutory instruments?

A

Can make certain changes without having to go back to Parliament using a statutory instrument

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16
Q

Examples of statutory instruments.

A

1.Government has power to change the minimum wage through statutory instrument.
2. Police and Criminal Evidence Act 1984 gives Home Secretary powers to change police codes covering things like stop and search by statutory instrument.

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17
Q

How many statutory instruments are made each year?

A

Over 3000

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18
Q

What power do by-laws give county councils and district/town councils?

A

Country councils = power to pass laws affecting their country.

District/town councils = powers to pass laws affecting their town.

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19
Q

Examples of issues that counties or towns could pass by-laws on.

A

Parking restrictions
Drinking in public places restrictions
Dog poo laws

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20
Q

Who else can by laws be passed by?

A

Corporations

21
Q

Give an example of by-laws which could be passed by corporations.

A

Train companies regulating behaviour on trains

22
Q

3 reasons for delegated legislation.

A
  1. Need for detailed law.
  2. Need for expert knowledge.
  3. Need for local knowledge
23
Q

Why is the need for detailed law a reason for why we have delegated legislation?

A

Many areas of modern life need regulating and it would not be possible to pass a new Act every time regulation needed changing.

24
Q

Why is the need for expert knowledge a reason for why we have delegated legislation?

A

Some areas of regulation need great expertise e.g., environmental regulation can be delegated through bodies with necessary expertise through statutory instruments

25
Q

Why is the need for local knowledge a reason for why we have delegated legislation?

A

Town or county councils know the problems in their area better than Parliament in London and know how to deal with it better

26
Q

2 ways in which delegated legislation is controlled.

A
  1. Checks on the Enabling Act.
  2. Checks when the statutory instruments are being put into operation.
27
Q

In what ways can Parliament carry out checks on the Enabling Act?

A

Choose which ministers can introduce change.
Choose where in the country changes can be applied.

28
Q

What powers do Parliament have against the Enabling Act?

A

Can repeal it (cancel/nullify)

29
Q

What Committee assesses whether bills which create new statutory instruments are appropriate?

A

Delegated Powers Scrutiny Committee

30
Q

4 ways checks are done when SIs are being put into operation.

A
  1. Affirmative resolution
  2. Negative resolution
  3. Questioning of government ministers
  4. Joint Select Committee on Statutory Instruments
31
Q

What is affirmative resolution?

A

Where a small number of SIs need to be approved by Parliament before they can be implemented.

32
Q

Give an example of SIs which need affirmative resolution.

A

Changes to the police Codes of Practice.

33
Q

What is negative resolution?

A

Where SIs will come into place unless Parliament objects within 40 days (in practice, Parliament has no time to consider)

34
Q

What happens during questions of government ministers?

A

MPs can ask questions of ministers, including about their use of SI

35
Q

What does the Joint Select Committee on Statutory Instruments do?

A

Looks at all SIs being implemented and reports back to Parliament if it identifies an issue

36
Q

What issues will the Joint Select Committee on Statutory Instruments raise?

A

If SIs appear to go beyond the power allowed by the enabling legislation

37
Q

What happens under The Legislative and Regulatory Reform Act 2006?

A

Government ministers can pass statutory instruments in order to remove old law which have become “burdens”.

38
Q

What can be defined as a “burden” under The Legislative and Regulatory Reform Act 2006?

A
  1. A financial cost
  2. An administrative inconvenience
  3. An obstacle to efficiency, productivity or profitability
  4. A sanction which effects the operation of a lawful activity.
39
Q

Why is The Legislative and Regulatory Reform Act 2006 controversial?

A

Some argue it gives the government power to over-rule Parliament

40
Q

To ensure the government does not abuse the power they have under The Legislative and Regulatory Reform Act 2006, what rule is there?

A

The government can only use this power after consulting relevant bodies which include interest groups; the Law Commission and the Welsh Parliament

41
Q

3 procedures through which government may use the powers of The Legislative and Regulatory Reform Act 2006.

A
  1. Negative resolution procedure
  2. Affirmative resolution procedure
  3. Super-affirmative resolution procedure
42
Q

What is the negative resolution procedure through which government may use the powers of The Legislative and Regulatory Reform Act 2006?

A

Where Parliament has 30 days to object to the SI

43
Q

What is the affirmative resolution procedure through which government may use the powers of The Legislative and Regulatory Reform Act 2006?

A

Where both Houses of Parliament must approve the SI

44
Q

What is the super-affirmative resolution procedure through which government may use the powers of The Legislative and Regulatory Reform Act 2006?

A

Where the government minister must heed any relevant representation by interest parties, resolution from Parliament and recommendations by Parliamentary committees

45
Q

On what grounds may delegated legislation be challenged in the courts?

A

On the grounds it is ultra vires

45
Q

What does ultra vires mean?

A

It goes beyond what the Enabling Act allowed

46
Q

What will the courts presume about things that are not expressly stated by the Enabling Act?

A

Unless the Act expressly says so, there is no power to:
Make unreasonable regulations
Levy taxes
Allow sub-regulation

47
Q

In what situation can courts strike down on SIs?

A

If the correct procedure was not followed to introduce it.

48
Q

Case where statutory instrument was ruled to be ultra vires.

A

Strickland v Hayes Borough Council (1896)

Paper 3 Contract Law (30 decks)

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