Section A - Delegated Legislation Flashcards
What is delegated legislation (DL)
When parliament passes down the power to make laws to another authority under an enabling act
What are the 3 types of DL
1) orders in council
2) statutory instruments
3) bylaws
What is orders in council
Laws created by the king or privy council
What is the privy council
An inner council in government which involves the king and government ministers
The privy council can create orders in council through 2 pieces of legislation. What are these
1) emergency powers act 1920
2) civil contingencies act 2004
When is orders in council used
1) to deal with emergency situations
2) when parliament isn’t sitting
What is the case for orders in council dealing with emergency situations
The nursing and midwifery council (emergency procedure) (amendment) order 2020 - allowed nurses to qualify using ‘remote training’
What are the 2 cases for orders in council when parliament isn’t sitting
Misuse of drugs (amendment) act 2003 - downgraded cannabis from Class B to Class C drug
Misuse of drugs (amendment) act 2008 -
Upgraded cannabis from Class C to Class B
What are statutory instruments
Powers which are given to government departments (e.g. education, transportation) made by government ministers
When are statutory instruments used (with cases)
1) update laws - National Minimum Wage Act 1998
2) provide details for laws - The Education Act 2002
3) allow for expert opinion - Road Traffic Act 1988
4) putting EU law into UK law - Working Time Regs 2003
What are bylaws
Parliament gives the power to make laws to local organisations (e.g. councils or organisations) made by local authorities
What are the 3 main situations bylaws are used to create DL
1) to keep local communities clean
2) to keep local services safe
3) to provide local facilities
What is the case for bylaws to keep communities clean
Clean Neighbourhoods and Environment Act 2005 - fined £1000 if a dog is caught fouling
What is the case for bylaws to keep local services safe
The Railways Act 1993 - enabled rail operators to make bylaws regulating the conduct of passengers
What is the case for bylaws to provide local services
Local Government Act 1972 - local councils were able to make bylaws ‘for the good time and government of the whole of a part of the district’
What are controls over DL
DL is parliament voluntarily giving up control over certain areas of law so there are controls that regulate the use of DL
What are the 2 methods of control over DL
1) parliamentary control
2) judicial control
What are the 3 types of parliamentary control over DL
1) affirmative resolution
2) negative resolution
3) scrutiny committee
What is the type of judicial control over DL
Judicial review
What is affirmative resolution as a parliamentary control over DL
DL is laid before HoC and HoL usually for 28 to 40 days before it can become a law
(It is only a law when both houses have voted in favour)
What is negative resolution as a parliamentary control over DL
DL is laid before parliament for 40 days and over the 40 days any member of parliament who objects can put a motion called a ‘prayer’ (making the DL no longer a law)
What is the scrutiny committee as a parliamentary control over DL
Statutory instruments are scrutinised and can make parliament aware of laws which need special consideration
What are the 4 reasons the scrutiny committee refers SI’s back to parliament
1) exceeds powers of The Enablimg Act
2) imposes a tax of charge on public
3) retrospective (outdated)
4) not been made under the method stipulated in The Enabling Act
What is judicial review as a judicial control over DL
DL can be challenged in high court
Someone who is affected by a piece of DL can apply to the courts for ‘judicial review’ (this can only be used when they believe the DL is ‘ultra vires’)
What is ultra vires
When the body has gone beyond the powers given to it by parliament
What are the 3 types of ultra vires
1) procedural UV
2) substantive UV
3) unreasonableness
What is procedural UV (with case)
Argues that the body has not followed the procedures set out in the enabling act for creating DL
Agricultural Training Board v Aylesbury Mushrooms - they didn’t consult with the Mushroom Growers Association
What is substantive UV (with case)
The DL goes beyond the powers given in The Enabling Act
Strickland v Hayes Borough Council - made it an offence to sing or recite any profane or obscene song or use that language in a public place
What is unreasonableness as UV (with case)
The DL is unreasonable (commonly known as ‘wednesbury unreasonableness’)
Associated Picture House v Wednesbury Corporation - banned under 15’s from the cinema on Sunday
What is the effectiveness of affirmative resolution as a parliamentary control over DL
- has limited effectiveness
- can’t be used to amend SI
- time consuming to create a new one
- can only lead to approval
- involves debate
What is the effectiveness of negative resolution as a parliamentary control over DL
- scrutinises DL
- difficult to look at all DL
- can be objected by any member of HoL or HoC
What is the effectiveness of the scrutiny committee as a parliamentary control over DL
- no guarantee parliament will change SI
- allowed for legislation which has not been controlled by parliament
What is the effectiveness of judicial controls over DL
- can apply to any type of DL
- only applies if individual bring a case to court
- if individual doesn’t have the resources they are likely to lose
- challenge must take place within 30 days of the decision
- judges don’t have the power to revoke DL
What are the 4 main advantages of DL
1) saves time and money
2) use of local knowledge
3) policy over detail
4) it is quick in an emergency
What are 3 points of the advantage ’saves time and money’
1) local government pension scheme regs updated yearly
2) saves parliaments time
3) DL is straightforward so little debate is needed
What are 3 points of the advantage ‘use of local knowledge’
1) Local Government Act 1972
2) MerseyTravel
3) DL makes laws on local issues
What are 2 points of the advantage ‘it’s is quick in an emergency’
1) an act of parliament can take 9 months
2) Food Protection (emergency provisions) Order 1986
What are 2 points of the advantage ‘policy over detail’
1) RTA1988 - helmets worn
2) details usually worked out by persons with specific knowledge and specialisms
What are the 4 disadvantages of DL
1) lack of public awareness
2) sub-delegation
3) lack of clarity
4) undemocratic
What are 3 points of the disadvantage ‘lack of public awareness’
1) public don’t know much about DL
2) difficult to find (even for lawyers)
3) Parent Act doesn’t list all SI’s
What are 2 points of the disadvantage ‘sub-delegation’
1) DL created by unelected officials
2) Government ministers often delegated SI’s to other staff
What are 2 point of the disadvantage ‘lack of clarity’
1) hard to find DL, difficult to understand the law
2) Health Protection (COVID) Regs 2020 - little debate and passed too quickly
