Law making - delegated legislation (paper 2)

Question 1

What is delegated legislation?

Answer 1

Law made by some person or body than Parliament, but with the authority of Parliament

The authority is usually laid down in a ‘parent’ Act of Parliament, known as an enabling act

This creates the framework of the law and then delegates the power to others to make more detailed law in the area

An example of an enabling act is the Police and Criminal Evidence Act 1984 which gives us powers to made codes of practice for the use of police powers

Question 2

What are the three types of delegated legislation

Answer 2

Orders in council
Statutory instruments
By-laws

Question 3

Describe orders in council as a type of delegated legislation

Answer 3

The King and the Privy council

• Effectively allows the government to make legislation without it having to be debated or voted in Parliament
• They are made in time of emergency, when laws need to be passed or changed quickly, but parliament is not sitting
• Can be used to change specific laws i.e classification of drugs (2003 - misuse of drugs act 1971 to downgrade cannabis to a Class C drug. Five years later it had been a mistake and another Order in council was issued, upgrading to Class B

Constitutional reform act 2005, parliament gave the privy council the power to change the number of supreme court judges, done by the privy council using an order in council

Question 4

Describe statutory instruments as a type of delegated legislation

Answer 4

Laws made by the government department and their ministers
- often in the form of regulations
- ministers in government departments can be given authority to make regulations and each is responsible for different areas of policy

• Often used to fill in primary legislation and to update rules/regulations
• Often used to fill in primary legislation and to update rules/regulations
  -Made on areas of law which affect the whole country e.g Bail Act

Over 3000 SI’s are made each year
- parliament could not cope with this volume or complexity, which is best left to the departments with expertise and responsibility in specific areas

Question 5

Describe by-laws as a type of delegated legislation

Answer 5

Made by local authorities to cover matters within their own area

• National trust act 1907
• Sometimes public corporations can make by laws e.g railway companies can make rules about behaviour on premises
• Allows professional associations to make rules about their members, solicitors act 1974
• Large corporations could make laws about not smoking/parking restrictions/use of mobiles/drinking in public e.t.c
• Usually these by-laws will be made under the Local Government Act 1982

Question 6

What are the 4 types of parliamentary control

Answer 6

Approval of the parent Act
Negative resolution procedure
Affirmative resolution procedure
Scrutiny by committee

Question 7

Explain approval of the parent act

Answer 7

Parliament’s first attempt to control delegated legislation made in is name comes with the drafting of the parent act .

This should be clear, unambiguous and give ‘what’ and ‘how’ instructions that are open to very little interpretation

Question 8

Explain negative resolution procedure

Answer 8

Delegated legislation is designed to save parliamentary time but AROs can defeat this object and could not possibly be used for all 3000 SIs each year

In the absence of an ARO, Parliament has 40 days to pass a negative resolution order to prevent an SI coming into force

If Parliament misses this deadline, only primary legislation or repealing the parent act can remove the DL

Question 9

Explain Affirmative resolution procedure

Answer 9

In this process, Parliament cannot amend (change) the statutory instrument, it can only be approved or denied

Question 10

Explain Scrutiny by committee

Answer 10

Parliamentary committees are bodies set up for peers and MPs to scrutinise the work of the government, including delegated legislation

The main committee for this is the Joint committee on statutory instruments

Joint committee on statutory instruments can review all statutory instruments and decide if the rest of Parliament need to be alerted to any problems such as….
1. If SI creates a new tax - only parliament can do this
2. If SI has retrospective effect
3. If SI goes beyond the powers given under the parent act
4. If SI is in some way defective

Question 11

What is judicial review

Answer 11

Where courts review the decisions made by public authorities

It is done by the KBD, usually by 2 judges. Decisions can be appealed to the Court of Appeal and the Supreme Court

Question 12

What are the three types of delegated legislation where it is found to be ultra vires
Ultra vires = outside the power given by the parent act (quashed)

Answer 12

Procedural ultra vires
Substantive ultra vires
Wednesbury unreasonableness

Question 13

Explain procedural ultra vires
- give a case

Answer 13

The secondary body has exceeded its powers and failed to follow the procedural instructions in the parent act

e.g Aylesbury Mushrooms 1972

Question 14

Explain substantive ultra vires
- give a case

Answer 14

The secondary body had gone beyond the powers granted to it and made more regulations than permitted

This is different from procedural ultra vires because it is about the result of the delegated legislation, not the process of making it

e.g Fire Brigades Union 1995

Question 15

Explain wednesday unreasonableness
- give a case

Answer 15

Where a piece of delegated legislation is so unreasonable that no reasonable body or authority would ever consider imposing it

If the court finds a piece of delegated legislation to satisfy the test for Wednesbury unreasonableness, it will declare it to be ultra vires
e.g Swindon NHS Trust (1996)

Question 16

What are the 4 advantages of delegated legislation

Answer 16

Time saving
Policy over detail
Expertise
Flexibility

Question 17

Explain why an advantage of DL is that it is time saving

Answer 17

DL is quicker to pass and amend that an act of parliament, which must be debated and passed by both houses

Parliament’s business is controlled by the government; its procedure can be complicated and it does not sit all year

New laws to deal with changing situations like the COVID 19 pandemic, have been introduced

Question 18

Explain why an advantage of DL is policy over detail

Answer 18

It is better for parliament to focus on wider issues of policy rather than the detail and leave others to fill in the gaps

For example the Road Traffic Act 1988 made a general requirement for motorcycle helmets to be worn but detailed specifications of the nature of approved helmets were set out in separate regulations

Question 19

Explain why an advantage of DL is expertise

Answer 19

DL may ensure that laws are made by those with relevant expertise

This is important because for example, health and safety laws for different industries need to be relevant and accurate. DL allows people who understand that particular industry to draft them

Laws that affect local areas made by local authorities who understand the needs of that area means that laws are more likely to be accurate and fit for the purpose

Question 20

Explain why an advantage of DL is flexibility

Answer 20

DL can be easily amended or revoked without having to go back to parliament

e.g updating the amount of minimum wage each year

Question 21

What are the disadvantages of delegated legislation

Answer 21

Undemocratic
Wording
Volume
Control

Question 22

Explain why a disadvantage of DL is it being undemocratic

Answer 22

It takes law making away from democratically people elected to the House of Commons and allows non elected people to make law

This is a problem because these officials are not accountable to the electorate; they cannot be voted out if they make a mistake

Particularly problematic if an enabling act delegates powers to amend or repeal acts of parliament

Question 23

Explain why a disadvantage of DL is the wording

Answer 23

DL shares with Acts of parliament the same problem of obscure wording that can lead to difficulty in understanding the law and requiring judges to interpret the meaning

Question 24

Explain why a disadvantage of DL is the volume

Answer 24

The sheer volume of DL is hard to keep up with, typically 3,000 statutory instruments are passed each year

This is problematic as ordinary people may not be able to work out what the law is/ how to control it

This can be argued to be contrary to the rule of law which states that law should be ascertainable

Question 25

Explain why a disadvantage of DL is control

Answer 25

Parliament and courts can be ineffective at controlling DL

Judges cannot exercise their control over DL without a member of the public taking legal action, which is time consuming and expensive