Law Making Flashcards
what is delgated legislation
a law made by someone other than government but with the authority of an act of parliament (sometimes reffered to as secoundary legislation)
3 types of delegated legislation
- orders in council
- by laws
- statutory instruments
why do parliament use delegated legislation
- local needs
- cost and time management
- specialist knowledge
what act gives authority for delegated legislation to make laws
The enabling Act
who makes orders in council
Privy court and queen
when is order in court used
- in emergencies
- bring statutes into force
- transfer responsibility between government departments
Example of law made by order in council
Misuse of drug act 1971
who makes by laws
local authorities or large bodies authorized to do so
exampe of a law created by by-law
the local government act 1972
who makes statutory instruments
gov. departments and ministers
who do statutory instruments apply to
apply nationally
what can statutory instruments do
- implement an act of parliamenr
- update an act of parliament
- provide detail for act of parliament
exapmle of statutorty instruents
mining regulations 2014
reason for use of delegated legislation
- time
- expertise
- detail
- local knowledge
- consultation
what are the parliamentry controls in terms of delegated legislation
- Parent Act,
- Negative Resolution Procedure,
- Affirmative Resolution Procedure
- scrutiny committee
- questioning gov. ministers
describe the enabling act in terms of delegated legislation
sets out the limits within which any delegated legislation must be made. Specifies which minister needs to make the legislation and who they must consult etc
describe negative resolutio in terms of delegated legislation
the revelent statutory instrument will be law unless rejected by parliament within 40 days
affirmitive resolution in terms of delegated legislation
stautory instruments can not become law unless approved by parliament
what can the scrutiny commitee do in terms of delegated legislation
- ONLY APPLY TO STATUTORY INSTRUMENTS
- reviews then refers back to parliament
- but ca not amend
what control do the courts have on delegated legislation
JUDICIAL REVIEW
-The validity of a parent act cannot be challenged but the legislation that has been delegated can be challenged if the procedure has not been followed or that a body has exceeded the powers granted to them.
Acted ultra vires
What is meant by ultra vires
To go beyond the power or authority granted
Two types of ultra vires
- Procedural ultra vires
- Substantive ultra vires
describe Procedural ultra vires
The correct procedure has not been followed
describe Substantive Ultra Vires
The body has gone beyond the powers granted
Procedural Ultra Vires Case
Agricultural Training Board v Aylesbury Mushrooms (1972)
didn’t consult the mushroom growers
Substantive Ultra Vires Case
AG v Fulham Corp (1921)
Baths and wash-house Acts, imposed charges for the poor
Name 3 advantages of delegated legislation
Saves parliamentary time-Parliament can focus on important issues
Access to technical expertise-Makes the rules more accurate and appropriate
Allows consultation
Allows quick law making
Easy to amend
name 3 disadvantages of delegated legislation
1.Undemocratic-lawmaking authority is handed down
Civil servants (un-elecetd)
2.Large volumes–large volume makes it difficult to discover what present law is
3.Lack of publicity-passed through Parliament without debate
Difficult wording- hard to undertand unclear
what is the literal rule in stautory interpretation
Gives words their plain, ordinary, meaning even if the outcome is absurd.
3 types of stutory interpretation
literal rule
golden rule
mischief rule
give an advatage and disadvantage of literal rule
Advantage: There is no room for prejudice to appear from judges.
Disadvantage: Can produce absurd and and indefensible results.
example of case where literal rule used n explain
Whiteley v Chappell (1868)
A defendant charged for impersonating “any person entitled to vote” was found not guilty because literally, dead people cannot vote.
define golden rule in statutory interpretation
An extension of the Literal Rule, which allows the court to look at the Literal meaning but avoids the absurd result.
give an advantage and disadvantage of golden rule
Advantages/Disadvantages
Advantage: Allows the judge to choose the sensible option when there is more than one meaning.
Disadvantage: There are no clear guidelines as to when it can be used.
example of case when golden rule used and explain it
Adler v George (1964)
The defendant was charged with obstructing a member of the armed forces ‘in the vicinity of A prohibited place’ the defendent argued that he was inside the prohibited place and not in the vicinity.
The court decided that in the vicinity included inside to avoid absurdity.
broad approach (statutory interpretation)
When there is only one literal meaning to the word and choosing it would cause an absurdity, the judge can modify the law or meaning.
narrow approach (statutory interpretation)
When a word has more than one literal meaning, the judge can pick between the two to avoid the absurdity.
decribe what happened in r v allen 1988 narrow approach
- The defendent was charged under the offenses against the person act, he attempted to marry a second time without a divorce.
- Allen argued that it was impossible to marry twice as the second marriage wouldn’t be lawful therefore it was impossible to commit the offense.
- The judge said there were two meanings to marry and the second meant to go through the ceremony.
- The judge adopted this meaning and the defendent was found guilty.
define mischief rule (statutorty interpretation)
Looks back at the gap in the previous law and interprets the act to cover the gap.
give an advantage and disadvanatge of michief rule
Advantage: Avoids absurd and unjust outcomes.
Disadvantage: Gives far too much power the the judge.
case example of mischief case and describe case
Smith V Hughes (1960)
- Prostitutes were found soliciting in a street and were charged under the Street Offences Act 1959.
- This led the prostitutes to ‘offer their services’ on balconies and upstairs windows.
- The literal rule would have allowed them to escape liability, but Lord Parker issued the Mischief Rule where he said: ‘everybody knows that this was an act to clean up the streets’ so they could be found liable.
define intrinsic aid
Anything in the statue itself which may help to make its meaning clear
define extrinsic aid
Are the materials found outside the act that may be referred to by the judges.
Advantages of Intrinsic Aids
Some of these are placed in the statute by parliament to make the law clearer- this means that courts will come to the interpretation parliament intended.
In older statutes the inclusion of a preamble has been particularly helpful to the courts.
Definition sections in the acts are also use to judges such as the definition of property in theft.
disadvantage in instrinsic aids
They are not in every statue in particular modern acts no longer have preambles in them
Some intrinsic aids are headings left by printers so don’t necessarily reflect parliaments intentions
Definition sections are not always included in acts, although property is defined in the theft act 196
adavnatges of extrinsic aids
Hansard = It is available for everyone to consult.
It gives the entire debate of parliament on the statue in question - this may make the words in statues clearer.
Law Reform = They are well informed reports following lots of research and consultation. In many cases the report will include a draft bill, where the bill has become law without alterations, it is clear parliament agreed with the r
disadvantages of extrinsic aids
Hansard = Words at issue may not have been mentioned in the debate. What was said also may not make the words any clearer. Additional costs are involved as lawyers feel obliged to spend expensive time reading through them.
Reform = In some cases the proposals for reform and the draft bill will not be wholly acceptable by the government and they will include different changes to the bill. Law commission reports are only available for limited areas of law, so there may not be any report on the particular point aring in court.
