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Law > Unit 1 section A - Delegated Legislation > Flashcards

Unit 1 section A - Delegated Legislation Flashcards

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1
Q

What is delegated legislation?

A

Law is created by a body that’s not parliament w/ the authority of parliament

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2
Q

Why is DL used?

A

Adds detail to a piece of law or makes changes to an act, when it’s not practical to make a new one.

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3
Q

Why does Parliament need to delegate power?

A
  • Don’t have expertise to make certain laws
  • Don’t have local knowledge to make laws on certain subjects
  • Limited time
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4
Q

How does Parliament delegate power?

A

Via the enabling act e.g. The Road Traffic Acts 1989

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5
Q

What are the 4 forms of DL?

A
  • Statutory interpretation
  • byelaws
  • Orders in Council
  • Devolution
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6
Q

Who are SI’s made by?

A

Made by govt. departments on technical expertise, make up almost 3k of DL every year.

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7
Q

Who are SI’s made by?

A
  • Made by govt. departments on technical expertise, make up almost 3k of DL every year.
  • Drafted by legal office of relevant govt. departments, consulting w/ interested departments
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8
Q

What control’s are used on SI’s by parliament?

A

Affirmative or negative resolution

-Affirmative:
(Enabling Act has to say it’s affirmative, if not, it’s neg). Dl will not become Law unless approved by Parliament.
-Negative:
Dl will become law unless rejected by parliament within 40 days.

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9
Q

Example of SI’s

A

-Road traffic Act 1988

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10
Q

What are byelaws?

A
  • Made by local authorities & public corporations
  • incl. matters of concern
  • Made w/ awareness of local issues e.g. dogs on the beach in the summer may be an issue, so impose a ban of dogs on the beach between may-sep.
  • Accompanied for fines for non-observance
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11
Q

Examples of byelaws

A

-Banning of dogs on Aberavon beach between may-sep.

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12
Q

Who are orders in council made by and when?

A
  • Made by privy council under emergency situations under Emergency Powers Act 1920 & Civil Contingencies Act 2004
  • Are approved by privy council and the Queen
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13
Q

How many members does the Privy Council made of and who?

A
  • 420 full-time members

- Made up of govt. ministers, PM and commonwealth

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14
Q

What are two types of Orders In Council?

A
  • Royal Prerogative

- Statutory

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15
Q

What are the 5 types of Parliamentary controls on DL?

A
  • Affirmative resolution
  • Scrutiny Committee
  • Negative resolution
  • Super-Affirmative Procedure
  • Consultation
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16
Q

What is Affirmative resolution?

A

-Used for SI’s & SI needs to be put before the HOL & HOC & they must approve it

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17
Q

What is an advantage of affirmative resolution?

A

-Gives control to HOC & HOL to reject it if they’re not happy

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18
Q

What are the disadvantages of affirmative resolution?

A
  • Time-consuming

- HOC/HOL can’t modify it, only approve or reject

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19
Q

What is negative resolution?

A
  • No debate on SI, will become law in 40 days, unless rejected by parliament.
  • Used to pass two thirds of SI’s
  • Offers limited control over delegated authority
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20
Q

Advantage of negative resolution

A

-Gives chance to MP’s to reject SI’s if not happy

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21
Q

Disadvantages of negative resolution

A
  • Too loose of a control

- Can’t modify it only approve or reject it

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22
Q

What is super-affirmative procedure?

A
  • Used to oversee legislative reform orders.

- Reports must be produced & HOC/HOL must accept/reject order.

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23
Q

Advantage of Super-Affirmative Procedure

A

Provides HOC/HOL more power & control to analyse order.

24
Q

What is Consultation?

A

Many enabling acts need consultation w/ interested parties or those affected by DL, to give their opinion.

25
Q

Advantage of Consultation

A

Enabling Act is a control in itself, sets boundaries for delegated body.

26
Q

Disadvantage of Consultation

A

Not all enabling acts use consultation

27
Q

Who are the Scrutiny Committee

A
  • Reviews technical merits of all draft SIs.

- Informs to Parliament SI’s of concern e.g. exceeds powers.

28
Q

Advantages of Scrutiny Committee

A

Acts as filter, so Parliament only looks at small NO of SI’s.

29
Q

Disadvantages of Scrutiny Committee

A

Their findings are often ignored

30
Q

Explain what occurs in Judicial Review of SI in QBDC of High Court

A
  • Challenged by person who’s been affected by Law.
  • Judicial Review challenges legality of action, decision or failure to act by public body.
  • Judge reviews SI & decides if it’s ultra vires (UV)
  • If so DL will be declared void.
31
Q

Disadvantage of Challenging SI through Judicial Review

A
  • Can be 30K+ if case goes to full hearing.

- Legal Aid not available.

32
Q

What are the 3 Judicial Controls?

A
  • Procedural Ultra Vires
  • Substantive Ultra Vires
  • Unreasonableness
33
Q

What is Procedural Ultra Vires (PUV)

A
  • When procedure for making law in enabling act, isn’t followed
  • e.g. consultation required not carried out.
34
Q

What is an example case for PUV?

A

Agricultural Training Board v Aylesbury Mushrooms (1972)

35
Q

Explain the Agricultural Training Board v Aylesbury Mushrooms (1972)

A
  • Enabling Act needed parties to be consulted before making law.
  • Minister failed to consult mushroom growers union, thus correct procedure wasn’t followed.
  • So declared PUV
36
Q

What is Substantive Ultra Vires (SUV)

A

Where DL goes over what Parliament intended.

37
Q

What is an example case for SUV?

A

Customs & Excise v Cure & Deeley Ltd (1962)

38
Q

Explain the Customs & Excise v Cure & Deeley Ltd (1962) case

A

-Excise Commissioners tried to impose tax & decide amount to be collected, but went beyond power given by Parliament.

39
Q

What is Unreasonableness

A

When a minister makes a decision no other reasonable person would make in similar situation.

40
Q

What is an example case for Unreasonableness?

A

Picture House vs Wednesbury Corporation (1947)

41
Q

Explain the Picture House vs Wednesbury Corporation (1947) case?

A

Cinema banned under 15’s from attending on Sunday, they challenged it wasn’t unreasonable, but courts disagreed.

42
Q

Briefly outline all the Advantages of DL

A
  • Flexibility
  • Time
  • Speed
  • Expertise
  • Local Knowledge
  • Democratic
  • Easily Removed
43
Q

Briefly outline all the Advantages of DL

A
  • Flexibility
  • Time
  • Speed
  • Expertise
  • Local Knowledge
  • Democratic
  • Easily Removed
44
Q

Explain how Flexibility is an Advantage of DL?

A

DL often for amending existing legislation, easier to use DL, than pass new Act of Parliament.

45
Q

Explain how Time is an Advantage of DL?

A

No time for Parliament to pass all laws, delegating it to other bodies saves them hassle.

46
Q

Explain how Speed is an Advantage of DL?

A

Quicker to pass DL, then new act of Parliament, good for emergencies.

47
Q

Explain how Expertise is an Advantage of DL?

A

Allows law to be made by bodies w/ expertise, MP’s don’t have e.g. health laws

48
Q

Explain how Local Knowledge is an Advantage of DL?

A

Byelaws created by local authorities, know needs of local ppl, not available to Parliament.

49
Q

Explain how Democratic is an Advantage of DL?

A

Gov Ministers responsible for SI’s are elected.

50
Q

Explain how Easily Removed is an Advantage of DL?

A

If necessary if causing problems.

Acts of Parliament would need another Act to either amend or abolish it.

51
Q

Briefly outline all the Disadvantages of DL

A
  • Volume
  • Undemocratic
  • Lack of Control
  • Lack of Publicity
52
Q

Explain how Volume is a disadvantage of DL?

A

Lot of DL’s made each yr, laws hard to keep up w/ e.g. 3K SI’s made alone.

53
Q

Explain how Undemocratic is a disadvantage of DL?

A

Laws made by unelected bodies, ppl feel laws should be made only by Parliament.

54
Q

Explain how Lack of Control is a disadvantage of DL?

A

Many SI’s passed using negative revolution, loose control of DL.
Also if consultation’s not required it’s not carried out.
Orders in Council & Byelaws have limited control by Parliament.

55
Q

Explain how Lack of Publicity is a disadvantage of DL?

A

Even if on internet may be hard to find laws

Law (2 decks)

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