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Law Paper 1 > Module 3 - Delegated legislation > Flashcards

Module 3 - Delegated legislation Flashcards

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1
Q

What is delegated legislation?

A

Law made by an individual or body other than Parliament, but with Parliament’s authority, allowing more detailed rules to be created under the framework of an existing Act.

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2
Q

What is an Order in Council?

A

A form of delegated legislation made by the monarch and Privy Council, often used in emergency situations or for specific administrative purposes, especially when immediate action is required.

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3
Q

What is a statutory instrument?

A

A common type of delegated legislation made by government ministers under powers given by an Act of Parliament, allowing for detail within the scope of the Act.

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4
Q

What is a by-law?

A

A type of delegated legislation made by local authorities or corporations, applying to specific areas or groups, for the regulation of matters under their control, such as local traffic rules or public behaviour.

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5
Q

What is a government minister?

A

An appointed member of the government responsible for overseeing a specific department, developing policies, and implementing legislation within their area of authority.

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6
Q

What is a local authority?

A

A governmental administrative body in charge of services and regulations within a particular area, such as a council, with the power to enact by-laws and oversee public services like education and housing.

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7
Q

What is the Enabling Act, who passed it, and what does it do?

A

Parliament passed the Enabling Act; this Act gives the right to create types of delegated legislation.

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8
Q

What are the three types of delegated legislation, and who makes them?

A

Order in the Council; made by the Privy Council
Statutory instrument; made by government ministers
Bylaws; made by local authorities

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9
Q

What is an Order in Council, and what does it allow the government to do?

A
  • The King and Government have authority to make Orders in the Council; the Privy Council is made up of the Prime Minister and other leading members of the Government.
  • Allows the government to make laws without going through parliament.
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10
Q

What is the main use of an Order in Council?

A
  • Main use is to give legal effect to EU directives
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11
Q

What two acts (1920, 2004) give the Privy Council power to make laws, only exercised when Parliament is not sitting?

A

Emergency Powers Act 1920
Civil Contingencies Act 2004

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12
Q

In what circumstances would Parliament not be sitting?

A
  • During a general election
  • During summer recess
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13
Q

Give one example of an Order in Council.

A

Making cannabis a Class B drug, upgraded from a class C.

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14
Q

What is a statutory instrument, and what does it allow ministers to do?

A

Refers to rules and regulations made by government ministers; ministers and government departments are given authority to make regulations for areas under their particular responsibility (i.e. Minister for Transport and road traffic; Minister for Health and the NHS)

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15
Q

How many statutory instruments are brought into force each year?

A

3000

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16
Q

Name three acts which give a Minister of State power to make delegated legislation.

A

Police and Criminal Evidence Act (PACE) 1984
Constitutional Reform Act 2005
Offender Management Act 2007

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17
Q

What is a by-law, and what does it allow local authorities to do?

A
  • Can be made by local authorities to cover matters within their own area
  • County Council can pass laws affecting the whole county; District/Town councils can only make laws for their specific area
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18
Q

What are by-laws usually surrounding?

A

Usually around traffic control (yellow lines, parking restrictions, one way traffic, zebra crossings)

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19
Q

Give two examples of traffic control by-laws in London boroughs.

A
  • Can mount the pavement in Barking but cannot mount the pavement in Redbridge or Ilford despite close proximity
  • Moreover, in Tower Hamlets, can park on single yellow lines on the weekend but cannot in other neighbouring boroughs
20
Q

What other authority can make by-laws?

A

Public Corporations and certain companies can also make By-Laws within their jurisdiction; i.e. British Airports Authorities and British Rail can enforce rules on behaviour on their premises

21
Q

Is delegated legislation elected or non-elected?

A

(Generally) non-elected.

22
Q

Why would there be a public enquiry before a law is passed?

A
  • On a sensitive matter, e.g planning laws which could affect the environment
23
Q

What are the three ways of controlling delegated legislation?

A
  • Affirmative resolution
  • Negative resolution
  • Joint Select Scrutiny Committee (aka. the Scrutiny Committee)
24
Q

What is an affirmative resolution?

A
  • Statutory instruments will not become law unless specifically approved by Parliament (only affects a small number)
  • Major issue is that Parliament cannot amend the statutory instrument, and can only approve/annul/withdraw it.
25
Q

What is a negative resolution, and give one example.

A
  • Relevant statutory instrument will be law unless rejected by Parliament in 40 days; MPs can question ministers on proposed regulations in their department (i.e. during the PPE Covid Scandal where the Department for Health lost 75% of the £12 billion spent during the first year of COVID; Minister for Health questioned); majority are affected by this.
26
Q

What is the Joint Select Scrutiny Committee (aka. the Scrutiny Committee)?

A
  • Most effective check on statutory instruments; reviews all instruments and will draw attention to both Houses to points that need further consideration
27
Q

What are the main grounds in referring a statutory instrument back from the Scrutiny Committee?

A

> It imposes a tax or charge (only an elected body can do this)
It appears to have a retrospective (looking back on past events) effect which was not provided for by the Enabling Act
It goes beyond the powers of the Enabling Act
It is an unclear statutory instrument (can only report its findings)

28
Q

What is the Legislative and Regulatory Reform Act 2006?

A

This Act sets procedure for the making of a statutory instrument which can repeal an existing law which is a burden.

29
Q

What are the four types of burden under the This Act sets procedure for the making of a statutory instrument which can repeal an existing law which is a burden; a burden can be:

A
30
Q

What must a minister do when using the Legislative and Regulatory Reform Act 2006?

A
  • Must consult various persons and organisations of interest, as organisations may be substantially affected by this proposal (i.e. the Welsh Assembly and Law Commission both are affected by this)
31
Q

What is ultra vires?

A

Delegated legislation can be challenged in courts on the ground that it is ultra vires (it goes beyond the powers that Parliament granted in the Enabling Act); this may be challenged through judicial review or in a civil claim between two parties

32
Q

What happens to legislation which is ultra vires, and give one example.

A

Any legislation which is ruled to be ultra vires is void and not effective (i.e. R v Home Secretary, ex parte fire brigades union 1995)

33
Q

What is the role of the Enabling Act in legislation?

A

Unless the Enabling Act expressly allows it, there is not grounds to do it; (i.e. in the Strickland v Hayes 1896 // Aylesbury Mushroom 1972)

34
Q

What happens if a statutory instrument clashes with EU law?

A

In cases of EU law, if a statutory instrument conflicts with EU law, it will become void under all circumstances

35
Q

What happens if a council tries to levy tax?

A

Will become ultra vires; only Parliament can levy tax.

36
Q

What is the problem with sub-delegation in delegated legislation?

A

In theory, if a Minister creates legislation, it should be written by then, but in practice, most sub-delegate this to non-elected civil servants, which is undemocratic in society.

37
Q

What are the advantages of delegated legislation?

A
  • Saves Parliament time; does not have time to consider and debate every small detail of complex regulations, so making regulations through delegated legislation saves time
    > Allows for quick law making; passing an Act of Parliament can take considerable time (counterpoint when the act on begging on the street with a baby was criminalised (persecuted, child given to protective services) within a single day); in an emergency Parliament may not pass law quickly, while i.e. Order in Council can be made quickly
  • Need for technical expertise; Parliament may not have the necessary technical expertise or knowledge required
    > Health and safety regulations
    > Local knowledge needed for parking and one way systems in different areas
    > Technology, environmental safety and operating taxation schemes
    Parliament can debate the main principles thoroughly, but leave finer details to experts.
  • Government department can have the benefit of further consultation; particularly important on technical matters
  • Easy to amend; can be amended or revoked easily; ministers can respond to new or unforeseen situations through statutory instrument
38
Q

What are the disadvantages of delegated legislation?

A
  • Takes lawmaking away from the democratic elections, as it allows non-elected people to make law through subdelegation (civil servants in government department usually write the law with the official passing of it by the Minister); however, this criticism cannot be made for by-laws since the LA (local authority) are elected bodies and accountable to local citizens.
    > Much of our law is made by civil servants and rubber stamped by ministers
    > There are many delegated legislations, therefore it is hard to know what the law is, as it can vary in areas despite being within close proximity (i.e. cannot park on a single yellow in Ilford before a certain time but can across the weekend in Tower Hamlets) and (can mount the pavement in Barking but cannot in Ilford)
    > Lack of publicity; much of these laws are made in private; largely non-advertised and not known by the general public
    > Much of the legislation uses obscure wording that can lead to difficulty in understanding
39
Q

What happened in R v Home Secretary, ex parte fire brigades union (1995)?

A

Home Office attempted to make changes to the Criminal Compensation Scheme; this went beyond their powers granted by the Enabling Act

40
Q

What happened in Strickland v Hayes Borough Council (1896)?

A

A by-law was created by the Hayes Borough Council which prohibited the singing or reciting of obscene songs. This went beyond their powers, and was struck off in court. Made ultra vires.

41
Q

What happened in the Aylesbury Mushroom Case (1972)?

A

Minister of Agriculture attempted to make changes on the growth and delivery of mushrooms; was required to let relevant organisations and individuals know beforehand as part of procedure; the department failed to let them know before changes were made, courts ruled legislation as ultra vires due to correct procedure not being followed, had to start again.

42
Q

What happened in R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000)?

A

A High Court judge ruled that a statutory instrument setting condition for appraisal and pay was beyond the powers given by the Education Act 1996 (an Act which came from Parliament, setting out the payment for teachers; Minister for Education attempted to make changes but courts ruled in favour of Parliamentary supremacy, and the legislation became ultra vires)

43
Q

What is the importance of the Police and Criminal Evidence Act (PACE) 1984?

A

Gave the Home Office Minister powers to create codes of practice to the police; example of a statutory instrument

44
Q

What is the importance of Offender Management Act 2007?

A

Gave the Lord Chancellor powers to produce guidelines on who should be recommended to be a judge; example of a statutory instrument

45
Q

What is the importance of the Constitutional Reform Act 2005?

A

Gave the Home Office Minister powers to publish standards for the management of offenders; example of a statutory instrument

46
Q

How can Parliament control delegated legislation?

A
  • Enabling Act (setting limits on the powers)
  • Delegated Powers Scrutiny Committee
  • Affirmative or negative resolutions
  • Questioning of ministers
  • Joint Select Committee on statutory instruments
  • Super-affirmative resolutions
47
Q

Why is delegated legislation needed?

A
  • Detail needed
  • Consultation required
  • Expert or local knowledge

Law Paper 1 (6 decks)

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