SECTION A: Delegated Legislation 12 Markers PAPER 2 Flashcards
Discuss effectiveness of controls on delegated legislation
Parliamentary:
Enabling act
negative resolutions
Affirmative resolution
Joint select committee
Enabling act
P sets out conditions which all 3 types of DL can be made including who can make it, what it can cover and the time it applies. If any of these conditions are exceeded the DL can be void.
Negative resolutions
Less effective. Approx 3000 SI made each year. If no action is taken by P within 40 days, the SI automatically becomes a law. This means often SI is not properly considered and therefore leads to many bad laws being made. However it’s a quick process that can allow SI to be passed when needed
Affirmation resolutions
More effective. Some SI have to be approved specifically by P so bad laws should be picked up on. However it’s not good as it takes up P time which defeats point of DL.
Joint select committee
Effective. Appointed by P to check every SI complied with rules of DL. Eg SI is not allowed to raise taxes. Effective as all SIs are checked but the powers of the committee is limited. Can’t amend or reject it only refer to P. Also members of the committee may not have specialist knowledge required for each SI and therefore not realise the problem
Judicial controls
Judicial review
Why is judicial review effective - exceeding powers
- Can control DL. Many ways courts can find delegated powers being exceeded and declare DL void. Effective as it shoes independent scrutiny on how powers were exercised. Eg Aylesbury mushroom. Can stop abuse of delegated power and lead to injustices being stopped.
Why is judicial review effective - judges hearing evidence
Judges can hear evidence from experts to see if the law should be void. But final decision may be from the judge who is unelected by the general public. Eg R v Swindon NHS trust where judges decided decision made by trust was unreasonable
Not effectual judical review - standing
Only someone with standing can bring a case to court, so not just anyone can sue. Very costly to bring such a case and the person may be going against a public body who has money and legal advise therefore a lower chance of winning
Not effective judicial review - powers of court are limited
Powers of court are limited. Can declare DL void but can’t amend it. Bad as P would have to reconsider the enabling act to appoint a different body to make revised Dl. This will be costly and time consuming for P.
Advantages of DL
Saves P time
Apply to local areas
Made by those with specialist knowledge
Numerous controls from P and courts
saves p time
Parliament has 650 MPs in H of C and therefore any Acts passed involve a lot of debate and consequently a lot of time For instance, the Health and Safety at Work Act 1974 enabled the Minister of Work and Pensions to make regulations through a statutory instrument relating to health and safety in all types of work places, eg Mining Regulations 2014. This allows P to concentrate on other
matters such as budgets and BREXIT. however decisions won’t be very democratic
apply to local areas
assess the particular needs of the locality and respond by making laws to
deal with specific issues. For example there may be a problem with excessive drinking and
crime in certain parts of a town. A local council can pass a by-law making that area an
alcohol free zone. good as law can be made by people who know the local
area well and will have an understanding of how best to solve problems. however this results in thousands of by-laws every year with very little publicity.
specialist knowledge
Statutory instruments allow specific Government departments and ministers to make rules for their area of speciality. For instance, PACE 1984 allows the Minister of Justice to set the police Codes of Practice using his understanding of the criminal justice system. good as rules may have to be complex and require specialist knowledge to understand.
Numerous controls from P and courts
the scrutiny committee check statutory instruments for Parliament, and courts can
declare DL ultra vires in some situations. An example was when the correct procedure was
not followed in ATB v Aylesbury Mushrooms so the courts declared the DL as void. good as ensures that DL works in the way that Parliament intended. however controls are not always effective because the scrutiny committee can only refer problems to
Parliament
disadvantages
undemocratic
complex
large volume
not always effective
undemocratic
The Privy Council who make Orders in Council is not only made up of elected MPs but also unelected judges and bishops. statutory instrument (SI) was passed in 2012 by the Minister of Justice (and unelected civil servants) restricting the rights of immigrants to get legal aid. This SI was challenged in court and it was decided that the SI had been made ultra vires and may not be representative of public opinion. important laws may not represent what the public want however would be impossible for Parliament to make laws about everything, and so it is necessary to trust others to make laws about less urgent things
complex
can be long and complicated and often requires judges to interpret the wording to
fully understand them. An example is R (Rogers) V Swindon NHS Trust, where the case
involved technical rules and specific drugs, and the court had to decide what was
‘exceptional’ in relation to medical needs. hard to the public to understand
delegated legislation and it may be unclear. DL may be complex is because statutory instruments are created by people with special knowledge, meaning that the law should, in theory, be made with expertise.
large volume
Over 3000 SIs and several thousand by-laws
are made each year, often with little publicity. An example of this is when the British Airports Authority passed a by-law stopping passengers from taking tennis racquets on planes. A passenger was fined for doing this even though he was unaware he was doing anything wrong. This is bad because it is impossible for the average person to be aware of all these
laws, meaning that individuals and companies may be unaware of what is legal and illegal.
However, one reason there is so much DL is because local areas have their own by-laws
that are tailored to be effective in a specific area, which is advantageous.
not always effective
the scrutiny
committee can only refer problems to Parliament and hope they decide to take action, and
very few judicial reviews are actually successful. In 2018, nearly 3,600 reviews were
requested, but only 184 cases went ahead and the Government lost 40% of these. This
means that there may be quite a lot of bad delegated legislation being made. However, it is still positive that the courts are able to solve the problem in the cases they hear, and having a committee to double check work for Parliament is still beneficial.
