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Law Making > Delegated Legislation > Flashcards

Delegated Legislation Flashcards

1
Q

what is delegated legislation?

A

parliament does not have time to deal with every matter itself so delegated legislation is sometimes made by another person or body with the authority of parliament

parliament passes an enabling act which creates the framework of the law and delegates power to others to make more detailed law on the area

EXAMPLE = Police and Criminal Evidence Act 1984, gives the Home Secretary powers to make Codes of Practice for the use of police powers

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2
Q

what are the 3 types of delegated legislation?

A

an enabling act gives the right to create one of the types of delegated legislation…

  • orders in council
  • statutory instruments
  • by laws
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3
Q

what are orders in council?

A

drafted by government departments and approved by the Queen and Privy Council

the Privy Council is made up of the prime minister and other leading members of the government

effectively allows government to make laws without going through parliament

there must be an enabling act allowing the privy council to make orders in council on a particular topic — e.g. changes of the category of cannabis, the enabling act was the Misuse of Drugs Act 1971

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4
Q

what can orders in council be made on?

A

orders in council can be made on a wide range of matters, especially:

  • transferring responsibility between government departments — e.g. when the Ministry of Justice was created, the powers of the previous Department of Constitutional Affairs were transferred to the new ministry
  • bringing acts of parliament into force
  • giving legal effect to EU directives
  • dealing with some aspects of foreign affairs
  • making law in times of national emergency when parliament is not sitting — e.g. Civil Contingencies Act 2004
  • amend or update existing law — e.g. in 2003, an order in council was used to alter the Misuse of Drugs Act 1971 to make cannabis a class C drug, 5 years later the government decided this was a mistake and another order in council was made to change cannabis back to a class B drug
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5
Q

what are statutory instruments?

A

delegated legislation made by ministers and government departments

make regulations for areas under their jurisdiction — e.g. the minister for work and pensions can make regulations of work related matters such as health and safety at work

over 3,000 are made a year

can be very short, covering one point such as making the annual change to minimum wage or may be very long and too complex to include in an act of parliament

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6
Q

examples of detailed statutory instruments

A

Building Regulations 2010
• 10 parts
• 6 schedules
• amended numerous times by further regulations
• made under the European Communities Act 1972 and the Building Act 1984

Police Codes of Practice
• relates to powers such as stop and search
• 8 codes
• made by the minister for justice under the Police and Criminal Evidence Act 1984

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7
Q

statutory instruments: types of resolution

A

NEGATIVE RESOLUTION
• most statutory instruments are introduced by a negative resolution procedure
• relevant statutory instrument will become law unless rejected by parliament within 40 days

AFFIRMATIVE RESOLUTION
• small number of statutory instruments are subject to affirmative resolution
• statutory instruments will not become law unless specifically approved by parliament
• need for affirmative resolution will be included in the enabling act

SUPER AFFIRMATIVE RESOLUTION
• available if delegated legislation has been made under the authority of the Legislative and Regulatory Reform Act 2006
• gives ministers power to make orders to remove or reduce burdens from legislation
• parliament is able to exercise greater control

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8
Q

what are by laws?

A

made by local authorities to cover matters within their own area

for example, a county council can pass laws affecting the whole county while a town council can only make by laws for its town

most by laws are created under the Local Government Act 1972 or Local Government Act 1982

by laws must be confirmed and approved by the relevant secretary of state before they can come into force

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9
Q

what can many local by laws involve?

A

many local by laws will involve…

  • traffic control such as parking restrictions
  • when dogs can be exercised on a beach
  • banning alcohol in public places
  • banning skateboarding at local parks
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10
Q

how else can by laws be made?

A

can be made by public corporations and certain companies for matters within their jurisdiction which involve the public

bodies such as the British Airport Authority and railway companies can enforce rules about public behaviour on their premises

local water company might ban the use of hose pipes in the summer

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11
Q

what are controls on delegated legislation?

A

the vast bulk of legislation is made by people other than parliament, without being subject to full scrutiny via the legislative process

most delegated legislation is made by unelected bodies so its important to make sure that power is not abused

control is exercised by parliament and the courts

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12
Q

how can parliament control delegated legislation?

A

enabling act

resolution procedures

questioning of government ministers

scrutiny committees

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13
Q

how does the enabling act control delegated legislation?

A
  • sets out the limits within which any delegated legislation must be made
  • states which government minister can make regulations
  • states the types of laws to be made
  • states whether the laws can be made for the whole country or only for certain places
  • sets out whether the government department must consult other people before making the regulations
  • parliament retains control over the delegated legislation as it can repeal the powers in the enabling act at any time
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14
Q

how do resolution procedures control delegated legislation?

A
  • affirmative resolution procedure — statutory instrument will not become law unless specifically approved by parliament
  • negative resolution procedure — relevant statutory instrument will become law unless rejected by parliament within 40 days
  • super affirmative resolution procedure — minister must have regard to any representations made by outside bodies or resolutions of either house of parliament
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15
Q

how does questions government ministers control delegated legislation?

A

individual ministers may be questioned by MPs in the house of commons on their work in departments

can include questioned about proposed or current delegated legislation

holds them to account and forces them to explain their decisions

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16
Q

how do scrutiny committees control delegated legislation?

A

Joint Committee on Statutory Instruments reviews all statutory instruments and draws attention of both houses of parliament to points that need further consideration

technical review, not based on policy

main grounds for referring a statutory instrument back to parliament:
• it imposes a tax or charge — only an elected body has such a right
• appears to have retrospective effect — which was not provided by the enabling act
• appears to have gone beyond powers given under the enabling act — may make some unusual or unexpected use of powers

17
Q

what is the main problem with scrutiny committees?

A

review is technical and only limited to the points above

even if the committee discovers a breach of one of these points, they accept alter the regulations or stop them from becoming law

can only draw the attention of parliament to the matter

18
Q

effectiveness of parliamentary controls

A

sheer number of pieces of delegated legislation mean that not all of them can be given proper scrutiny before they come into force AND it’s very difficult to remove a piece of legislation once it comes into force

much legislation made in this way is very technical and those scrutinising it will usually not have sufficient knowledge of the relevant law needed to assess whether the legislation was validly made

use of affirmative procedure does not usually draw parliament’s attention to the delegated legislation

scrutiny committees can only make recommendations to parliament, it’s up to parliament to act on these recommendations or not

19
Q

how do the courts control delegated legislation?

A

delegated legislation can be challenged in court by a person with sufficient standing or interest in the case

can be challenged by judicial review on the ground that it is ultra vires (which means beyond the powers given by parliament in the enabling act)

if found to be ultra vires then legislation will be void and of no effect

process of judicial review takes place in a special Administrative Court within the Queen’s Bench Divisional Court

20
Q

control by the courts: when can delegated legislation be challenged?

A

delegated legislation can be challenged on the grounds that…

  • it goes beyond the powers set out by the enabling act (known as substantive ultra vires)
  • it failed to follow the correct procedure (known as procedural ultra vires)
  • it is unreasonable
21
Q

case for substantive ultra vires

A

R v Home Secretary

  • changes made by the home secretary to the Criminal Compensation Scheme
  • courts decided that the changes went beyond the delegated powers given in the enabling act (the Criminal Justice Act 1988)
22
Q

case for procedural ultra vires

A

Agricultural Training Board v Aylesbury Mushrooms

  • minister of labour failed to consult the Mushroom Growers Association over establishing a new training board
  • this association represented about 85% of all mushroom growers
  • led to the order being declared invalid
23
Q

case for legislation being unreasonable

A

Associated Picture Houses v Wednesday Corporation

  • cinema was granted a license to open on Sundays subject to the condition that no children under 15 are allowed to be admitted whether with an adult or not
  • this condition was “so unreasonable that no reasonable authority could ever come to it”
24
Q

effectiveness of judicial control

A

control by the courts has been successful is many cases by there are limits in judicial control — e.g. judicial review is limited

a piece of delegated legislation can only be challenged by a person who has standing, they must be affected by the legislation or decision. legislation may have been in force for years before someone affected is prepared to challenge it in court

challenges to delegated legislation have to be made against a public body or government department who are likely to have greater resources and funding to defend the legislation

the UK is still a member of the EU, so statutory instruments can also be declared void if they conflict with EU legislation

25
Q

5 reasons for using delegated legislation

A
  • detailed law
  • expert knowledge
  • local knowledge
  • consultation
  • emergencies
26
Q

detailed law

A

parliament does not have time to deal with all the rules and regulations needed for society to work safely and efficiently

using delegated legislation means that others can make laws but parliament still has overall control of what regulations are passed through the use of enabling act

27
Q

expert knowledge

A

it’s better for parliament to debate the main principles thoroughly but leave the details to be filled in by those who have expert knowledge of it

particularly in areas such as technology, environments safety, industrial problems and complex taxation systems

28
Q

local knowledge

A

for by laws, local councils know their own areas better than parliament does

this puts them in the best position to decide what areas need drinking bans or what local parking regulations there should be

would be impossible for parliament to deal with all the local requirements of every city, town and village in the country

29
Q

consultations and emergencies

A

consultations — to ensure legislation is technically accurate and workable

emergencies — delegated legislation can be passed quickly to deal with emergencies, particularly if parliament is not sitting

30
Q

advantages of delegated legislation

A

saves parliamentary time

access to technical expertise

easy to amend

31
Q

saves parliamentary time

A

parliament does not have time to consider and debate every small detail of complex regulations

they only have time to pass approximately 70 statutes a year

the process of passing an act of parliament can take a considerable amount of time and in an emergency parliament may not be able to pass legislation quick enough

delegated legislation like orders in council can be made very quickly to deal with disasters or terrorist threats

delegated legislation also allows parliament to focus on major issues and broader policies rather than getting held back in detail

statutory instruments can complete the detail of framework act or deal with regular changes such as annual changes to the minimum year

32
Q

access to technical expertise

A

delegated legislation allows matters to be dealt with by properly qualified experts

it’s better for parliament to debate the main principles thoroughly and consult experts for specific or complex detail which can be used to fill in the gaps in primary legislation

consultation is particularly important to make sure that regulations are technically workable

particularly in areas such as technology, environments safety, industrial problems and complex taxation systems

for by laws, local councils know their own areas better than parliament does which puts them in the best position to decide what areas need drinking bans or what local parking regulations there should be

would be impossible for parliament to deal with all the local requirements of every city, town and village in the country

33
Q

easy to amend

A

delegated legislation is flexible and can be amended or revoked easily when it is necessary to do so

this allows the law to be kept up to date

useful where monetary limits change each year, for example minimum wage or limits for legal aid can be altered when necessary

furthermore, parliament is the most appropriate forum to deal with the constant review and updating of administrative matters so delegated legislation tackles this

34
Q

disadvantages of delegated legislation

A

undemocratic

large volume

difficult wording

35
Q

undemocratic

A

delegated legislation is undemocratic and undermines parliamentary sovereignty

this is because it takes law making away from the democratically elected house of commons and allows non elected people to make the law

these elected people are making laws that have implications on everyday life and a lot of them are not accountable

some argue that law is mostly made by civil servings and “rubber stamped” by the minister of that department

acceptable if there is sufficient control over delegated legislation but there is limited scrutiny in parliament due to the sheer number of pieces of delegated legislation which mean that not all of them can be given proper scrutiny before they come into force

HOWEVER, this criticism can not be made of by laws made by local authorities since they are elected bodies and accountable to local citizens

36
Q

large volume

A

over 3000 statutory instruments are made annually

despite the internet, it may be difficult to find a piece of delegated legislation and when it came into force

this problem is made worse by a lack of publicity, as much delegated legislation is made in private and passed through parliament without debate

37
Q

difficult wording

A

delegated legislation shares the same problems as acts of parliament in that they are difficult to understand

they involve complex and obscure wording that can lead to difficulty in understanding what the law means

rules of statutory interpretation may have to be used by the courts to understand the meaning of this form of legislation

Law Making (6 decks)

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