paper 2 section A: delegated legislation

Question 1

Reasons for the use of DL

Answer 1

• Local knowledge
• Amended easily
• Time
• Technical expertise
• Emergency

Question 2

Local knowledge

Answer 2

Parliament does not have the local knowledge to enable it to pass local laws so power is given to local councils
(Southend Borough Council and Water authorities make by-laws that relate specifically to Southend seafront)

Question 3

Amended easily

Answer 3

DL can also be more easily amended than Acts. To amend an Act, another Act has to go through the whole legislative process. But if a delegated rule is not working it can be amended quickly by the minister that created it

Question 4

Time

Answer 4

Parliament only has a limited time for law-making so they will create the framework only. They have other roles (consulting with constituents and they are only in session for an average of 200 days a year). By creating the framework of the new law in an Enabling Act, ensures the aims of the law are achieved but leaves developing the details to other bodies

Question 5

Technical knowledge

Answer 5

Parliament has limited technical knowledge so details and rules may be left to a government minister specialising in that area. The Enabling Act gives authority to the Minister to create rules and orders relating to that Act

Question 6

Emergencies

Answer 6

Parliament is not always available to pass new laws and if they are not in session and an emergency arises there needs to be a group who can make laws quickly - Privy Council

Question 7

Enabling Act

Answer 7

Outlines a framework of the law and gives power to another body to make rules relating to that Act
- Education Act 1946 gave power to the Minister for Education to create regulations about school attendance

Question 8

How Statutory Instruments are created

Answer 8

An Enabling Act outlines the framework of the law and give power to a minister, may be required to carry out consultation procedure, they will draft the rule
- Governed by the Statutory Instruments Act 1946, close to 3000 produced annually

Question 9

Types of SIs

Answer 9

1. Create rules and orders which give detail to the framework created in the enabling Act (Seafish Conservation Act 1967)
2. Update or amend previous Acts (National Minimum Wage Act 1998)
3. As commencement orders to bring parts of an Act of Parliament into force (Railways Act 2005 commencement order)
4. Bring into force EU directives (Unfair Terms in Consumer contracts regulations 1994 implemented an EU directive passed in 1993)

Question 10

Bylaws definition

Answer 10

Local laws made by local councils or other public bodies. Local councils do so under the authority of the Local Government Act 1972.

Question 11

Example of a local bylaw

Answer 11

Under the Criminal Justice and Police Act 2001 Southend Council has drinking control areas such as in the High Street

Question 12

Orders-in-Council definition

Answer 12

Made by the Privy Council (a body comprised of the King and senior Ministers). The Body makes these Orders without debate/vote in Parliament, meetings are usually held at Buckingham Palace and most are brief and consist of a few ministers

Question 13

How can the Privy Council make emergency laws?

Answer 13

They have power under the Emergency Powers Act 1920 to make laws in emergency situations when Parliament is not in session.

Question 14

Example of an emergency law made by the Privy Council

Answer 14

The Al-Qa’ida and Taliban Order 2022 which banned dealings with Osama Bin Laden

Question 15

Other uses of OIC

Answer 15

• declaring a state of emergency
• dissolving government departments or transferring responsibilities between them (An OIC was used to transfer powers from UK Ministers to ministers in Scotland and Wales under the Scotland Act Order 1999 and the National Assembly of Wales Order 1999)

Question 16

Parliamentary controls over legislation

Answer 16

1. Careful drafting of the enabling Act
2. Affirmative and negative resolution procedures
3. Scrutiny Committees
4. Ministers Question time
5. Revocation of the enabling Act

Question 17

Careful drafting of the enabling Act

Answer 17

The words used in the Act will be vital to ensure the body is aware of the limits of their delegated powers and the aims of the Act, which their rules and orders must seek to achieve. Act may require a consultation process - ensures that a variety of views from stakeholders are taken into account before the rules are created.

Question 18

Effectiveness of Careful drafting of the enabling Act

Answer 18

Effectiveness: If the legislation is precisely worded and the aims are clear and the limits of the power granted are explicitly as this enables the body the power to understand exactly what is required of them
Ineffectiveness: Words are not always a precise tool in expressing intentions - Parliament cannot foresee every future interpretation of the Act or use of power

Question 19

Affirmative and negative resolution procedure

Answer 19

If Parliament wants to approve any rules made under the Enabling Acts before they become law, they will make them subject to Affirmative resolution procedure (SIs will have to be debated and voted on before they become law) -they cannot Amend the SIs, only accept or reject them.

Uncontroversial Enabling Acts will make SIs subject to Negative resolution procedure, where the rules will become law automatically after 40 days of being laid before Parliament, unless there is an objection raised. Under the Statutory Instruments Act 1946 → The enabling Act which procedure must be followed for laws created under it - either affirmative or negative resolution procedure.

Question 20

Effectiveness of ARP

Answer 20

Effectiveness: Effective in controlling use of powers under the Act as Parliament must debate and vote on any rules under the Act. Gives them the opportunity to be clear on what does and doest constitute abuse of the delegated powers
Ineffectiveness: Only 10% of enabling Acts are subject to rules under the ARP + Time consuming which defeats one of the primary purposes of DL, which is to save parliamentary time

Question 21

Effectiveness of NRP

Answer 21

Effectiveness: Effective control for non controversial rules as it is time efficient and allows the delegated body autonomy in decision making
Ineffectiveness: Wouldn’t be effective without committees to scrutinise potential abuse of power or without the use of courts to bring cases which had been missed by the committees and had become law without Parliament’s attention being drawn to them

Question 22

Scrutiny Committees

Answer 22

They exist to check on SIs and draw attention to any which require the consideration of Parliament. Reasons may include the fact that it raises a tax, which has a retrospective effect, may be beyond the enabling Act powers or is unclear. (Example: The House of Lords Delegated Powers Scrutiny Committee - all bills which delegate powers are examined before they begin their passage through the House)

Question 23

Effectiveness of Scrutiny Committees

Answer 23

Effectiveness: They draw Parliament’s attention to Act for SIs which may potentially lead to abuse of power
Ineffectiveness: They cannot rule on the merits of the rules only on whether the powers appear to have been used correctly and their reports are not binding on Parliament

Ultimately there would be no need for court controls if the parliamentary controls were perfect, and although they are effective, this effectiveness is limited by practical considerations.

Question 24

Ministers Question Time

Answer 24

Its an opportunity for Parliament to investigate the methods and rules chosen by the mInster in using the powers granted too them by the Enabling Act. Parliament can hold them to account for their decisions and can raise awareness of any potential issues which might arise because of then new rules.

Question 25

Effectiveness of Ministers Q. Time

Answer 25

Effectiveness: It holds the rules created by ministers up too public crudity and allows MPs to hold the government to account
Ineffectiveness in terms of real powers to change SIs which have already been created

Question 26

Revocation of the enabling Act

Answer 26

The ultimate control by Parliament. They granted delegated powers through the enabling Act and can therefore withdraw those powers by passing another Act, if the delegated powers are being exercised in a way that they did not intend.

Question 27

What is ‘ultra vires’ and how does it challenge DL?

Answer 27

All DL can be challenged for being ‘ultra vires’ (beyond the powers). A person affected by the rules can challenge them through a process called Judicial Review in the dividing; court of the King’s Bench Division (KBD) in the High Court. This process can be expensive, extensive and purposely intimidating - requires the person to have some form of previous legal knowledge

Question 28

Procedural ultra vires

Answer 28

It can be argued that the delegated body did not follow PROCEDURES which were laid down in the enabling Act prior to creating the rules. This may include consultation procedures.

Question 29

Case of Procedural ultra vires

Answer 29

ATB (Agricultural Training Board) v Aylesbury Mushrooms LTD 1972 where the delegated body did not carry out the required consultation before bringing in nw training rules for Mushroom production

Question 30

Substantive ultra vires

Answer 30

Where the body is ACTING BEYOND THE POWERS granted to it under the enabling Act

Question 31

Case of Substantive ultra vires

Answer 31

Bromley LBS v Greater London Council 1983 where a local authority attempted to raise local taxes to subsidise local transport

Question 32

Wednesbury unreasonableness

Answer 32

Where it is argued that the delegated body has exercised their delegated powers in a way which is so UNREASONABLE that no reasonable body would have done so. For example, it was made illegal, in bad faith, dishonestly, unreasonable or with disregard to public policy. Its name came from a case where it was argued that a decision to restrict cinema opening times, to improve school attendance was unreasonable but failed - found to be restrictive to businesses

Question 33

Case of Wednesbury unreasonableness

Answer 33

Strickland v Hayes BC 1896 where it was found to be unreasonable to ban obscene singing on land near to public land

Question 34

Incompatibility with Human Rights

Answer 34

Since HRA 1998 (Human Rights Act) all UK laws must be compatible with human rights law. E.g. challenges to legislation such as the Suicide Act 1961 which prevents assisted dying for the terminally ill, were granted a judicial review, in the case of Conway (unsuccessful)

Question 35

Disadvantages of DL (CHAVS)

Answer 35

Control (lack of)
Henry VII clauses
ARP
Volume
Sub-delegation (to unelected civil servants)

Question 36

Control (lack of)

Answer 36

• Careful drafting (can’t be perfect)
• Committees - (can’t check every DL)
• Resolution procedures (2/3 negative)
• Court (relies on someone bringing a case)

Use of OIC allows the government to amend law without parliamentary debate/vote and provides an opportunity for this power to be abused under guise of ‘emergency powers’. The banning pf GCHQ trade union membership by Thatcher’s government was widely criticised

Question 37

Henry VII clauses

Answer 37

These clauses exist in some Acts which enable DL to be used to amend aspects of primary legislation (Enabling Act). The HRA 1998 allows for DL to be used to make swift amendments to primary legislation if incompatible with human rights. This is dangerous as the Enabling Act should set limits for the delegated body’s power so giving them powers to amend it brings a potential for abuse of power

Question 38

Criticism of Henry VII clauses

Answer 38

• In a 2017 speech Lord Judge was critical of the increasing use of these powers as 16/23 government bills contained 96 Henry VII clauses in 2015/16
• 13% of all SIs last year amended primary legislation and over half of these were subject only to NRP so were not thoroughly debated in Parliament

Question 39

The Great Repeal Bill (Brexit) 2017

Answer 39

This bill is likely to require the use of approximately 3,000 SIs to incorporate EU law into UK law when the UK exits the EU. Many of these clauses have Henry VII style provisions and there are concerns that minsters will be able to use this power to bypass Parliamentary approval for amended rules

Question 40

Volume of DL

Answer 40

This is a criticism as many pieces of DL are brought into force each year that the public is bound by the new laws but is often unaware of their existence. Ignorance of the law is no defence and although public records show new SIs online and controversial rules and decisions may appear in the media and by-laws are posted on lamp posts etc. In an average year approximately only 25 Acts but over 3,500 SIs will be passed as well as hundreds of by-laws depending on the local area

Question 41

Sub-delegation

Answer 41

Although law-making is granted to ministers, often it is their departments who actually create the rules and regulations. This is an advantage due to their technical expertise, but this sub-delegation to unelected civil servants who are not accountable to the public for their decisions, removes the decision making further from parliament and makes it less transparent