Paper 2.2 - Delegated Legislation

Question 1

What is delegated legislation?

Answer 1

Parliament passes a portion of its power down to another law-making body via an Enabling Act.

Question 2

What are the three types of delegated legislation?

Answer 2

Bylaws
Statutory Instruments
Orders in Council

Question 3

What is a bylaw? State the act which dictates how bylaws operate.

Answer 3

Bylaws are made by local authorities (county / district) to cover matters in their local area; Local Government Act 1982.

Question 4

Give an example of a bylaw and its punishment.

Answer 4

EG
Traffic control
Dog-walking on beaches
Public drinking offences
- Results in a fine.

Question 5

State the act which dictates how bylaws operate.

Answer 5

Local Government Act 1982.

Question 6

What are Orders in Council?

Answer 6

Made by the Monarch and Privy Council, Orders in Council transfer power between government and can operate in times of national emergency, bypassing the government.

Question 7

What Act gives the Privy Council power to create Orders in Council in times of national emergency?

Answer 7

Civil Contingencies Act 2004.

Question 8

Outside of national emergency, what is required for the Privy Council to be permitted to make an Order in Council? Give an example.

Answer 8

An enabling act.
EG
Under the Misuse of Drugs Act 1974, PC changed cannabis from Class C to Class B.
Under Constitutional Reform Act 2005, PC may change the number of Supreme Court Justices sitting.

Question 9

What is a statutory instrument?

Answer 9

Drafted by Ministers about their topics (eg Minister of Transport makes transport statutory instruments).

Question 10

What two methods allow statutory instruments to pass?

Answer 10

Negative and Affirmative Resolution Procedure.

Question 11

What is a negative resolution procedure?

Answer 11

Parliament fails to respond to a statutory instrument within 40 days; it automatically becomes law.

Question 12

What is a positive resolution procedure?

Answer 12

Parliament approves of a statutory instrument; it becomes law.

Question 13

Name an example of a statutory instrument.

Answer 13

EG
National Minimum Wage Act is a parent act for Minister to set a yearly minimum wage.
COVID restrictions were statutory instruments.

Question 14

Name the four controls Parliament have over delegated legislation.

Answer 14

Scrutiny Committees
Enabling Act
Resolution Procedures
Questioning of Ministers.

Question 15

What is a scrutiny committee?

Answer 15

A group of people employed to scrutinise delegated legislation and refer them to Parliament.

Question 16

How do Enabling Acts control delegated legislation?

Answer 16

Enabling Acts define what the secondary authority have jurisdiction on; it defines substantive ultra vires.

Question 17

How do the resolution procedures control delegated legislation?

Answer 17

Positive: Parliament directly control what becomes law.
Negative: Gives Parliament time to ensure that there is no malicious legislation in the statutory instrument.

Question 18

How can Parliament question ministers as a control on delegated legislation?

Answer 18

Parliament may question any minister about their work on proposed or current delegated legislation.

Question 19

What is the sole control over delegated legislation the judiciary have?

Answer 19

Judiciary review.

Question 20

What are the two forms of ultra vires judges can call in judicial review?

Answer 20

Substantive and Procedural

Question 21

What is procedural ultra vires?

Answer 21

Law-making body has not followed the procedure laid out in its enabling act.

Question 22

What is the case study for procedural ultra vires?

Answer 22

Aylsebury Mushrooms; Growers weren’t consulted before mushroom growing regulations were changed.

Question 23

What is substantive ultra vires?

Answer 23

Law-making body has gone beyond its jurisdiction laid out in its enabling act.

Question 24

What is the case study for substantive ultra vires?

Answer 24

Ann Summers; Job centre banned listings for Ann Summers; this went beyond their jurisdiction as they had no reason to hide the ads.

Question 25

What is Wednesbury unreasonableness?

Answer 25

Is the decision by the public body so unreasonable that a sensible person would not have arrived at it?

Question 26

What are four advantages to delegated legislation controls?

Answer 26

Parent acts set out clear guidance.
Both judiciary and Parliament own controls.
Scrutiny committees are employed to stop legislation.
Negative resolution procedure gives Parliament time.

Question 27

What are four disadvantages to delegated legislation controls?

Answer 27

Negative resolution is ineffective as it allows them to make their own rules when Parliament is too busy.
Judicial review relies on public to bring a case.
Public bodies have inequality of arms in judicial review.
Scrutiny committees are not experts in law.

Question 28

What are five advantages to delegated legislation?

Answer 28

Saves Parliament time.
Reduces Parliament workload.
Deals with local concerns.
Deals with national emergencies.
Controls maintain most of Parliament power.

Question 29

What are five disadvantages to delegated legislation?

Answer 29

Less democratic (Privy unelected, local elections unimportant).
Bylaws need less checks than Acts to pass.
Too much power away from Parliament.
Judicial review requires an individual to bring a case.
DL can be complex; against rule of law.