WK 5 - Delegated Legislation

Question 1

Define delegated legislation

Answer 1

• Law created by ministers (or other gov’t bodies) under powers given to them by an Act of Parliament (primary legislation)
• Law-making by executive branch

Question 2

Parliament cannot directly regulate all Gov’t work because of:

Answer 2

• Time
• Resources
• Expertise

Question 3

Role of enabling Acts

Answer 3

Delegates legislative power to executive

Question 4

Role of delegated legislation

Answer 4

• Fills in details of Acts (primary legislation)
• These details provide practical measures enabling law to be enforced and operate in daily life
• Can set date for when provisions of an Act will come into effect as a law
• Amend existing laws

Question 5

Delegated legislation’s impact on separation of powers

Answer 5

• The executive legislating: a problem for separation of powers
• Whether the executive should have legislative powers is not so controversial because of power constraints
• The scope of the executive’s power to legislate is more controversial

Question 6

Henry VIII Powers

Answer 6

• Normally an Act of Parliament can only be amended or repealed by later primary legislation (e.g., by another Act)
• Sometimes, Acts empower Ministers to do this through delegated legislation

Question 7

Why are Henry VII powers contentious powers?

Answer 7

• The scope of these is not always clear
• e.g., European (Withdrawal) Act 2018 - s. 8(5): Gives ministers power to do anything that can be done by an Act

Question 8

What is the most common form of delegated legislation?

Answer 8

Statutory instruments

Question 9

Power to make statutory instruments

Answer 9

• Set out in an Act of Parliament
• Almost always conferred on a Minister
• The minister can then make laws on the matters identified in the Act, and using the parliamentary procedure to set out in the Act

Question 10

Statutory Instruments Act 1946, s 1 - definition

Answer 10

Where a power to make, confirm, or approve orders, rules, regulations, or other subordinate legislation is conferred on a Minister and stated to be exercisable by statutory instrument (SI), any document by which that power is exercised shall be known as ‘statutory instrument’

Question 11

Mechanisms of parliamentary scrutiny - SI’s

Answer 11

• Not all subject to scrutiny [e.g., commencement orders]

Question 12

Which two procedures does the Statutory Instruments Act 1946

Answer 12

• Negative resolution procedure
• Affirmative resolution procedure

Question 13

Explain negative resolution procedure

Answer 13

• An SI laid before Parliament will come into effect unless either House passes a motion calling for its annulment within the relevant time

(typically 40 days)

Question 14

Explain affirmative resolution procedure

Answer 14

• More direct form of parliamentary approval
• SI requires a motion to be passed in both Houses for SI to take effect

Question 15

An SI cannot be amended by Parliament under negative/affirmative resolution procedure, unless…

Answer 15

The parent Act allows it

Question 16

Joint Committee on Statutory Instruments - technical scrutiny

Answer 16

• Select committee, for example, are members of both houses

Question 17

Validity of legislation

Answer 17

• Courts CANNOT declare primary legislation invalid
• Courts CAN declare delegated legislation invalid

Question 18

Ultra vires

Answer 18

If it exceeds the power under which it was made, ground for judicial review