Delegated legislation

Question 1

Primary legislation

Answer 1

anything that gets voted on in parliament

Question 2

Secondary/delegated legislation

Answer 2

usually either minor changes to existing laws which can be done by ministers or emergency legislation passed by something called the Privy council

Question 3

Privy council

Answer 3

made up of the King, PM, members of the government and opposition as well as Supreme Court judges, former PMs, former MPs and anybody else invited to join (over 200 members). Their job was to advise the King but nowadays they usually only meet if laws need to be passed quickly. They don’t all have meet, just usually members of the gov

Question 4

Delegate

Answer 4

give responsibility to somebody else

Question 5

What is law that is made up by some body other than Parliament?

Answer 5

with the authority of Parliament DL is established by a ‘parent act’ of parliament

Question 6

Three types of DL

Answer 6

order in council
statutory instrument
by laws

Question 7

Order in council

Answer 7

made by the King and the Privy Council. Gives the PM and other leading members of the gov the power to make laws w/o going through Parliament e.g. making law in times of national emergency
They cover:
1. Transferring responsibility between departments
2. Bringing Acts of Parliament into force
3. Making law in times of national emergency or certain aspects of foreign affairs e.g. Coronavirus Act that was passed overnight, legislation that allowed the lockdowns, mask mandates and prohibition of travelling
4. Can also update existing laws e.g. 2010 Order in Council to upgrade cannabis from class B to C drug under the Misuse of Drugs Act 1971

Question 8

Statutory instrument

Answer 8

rules and regulations that can be issued by ministers in their department under the authority of an enabling act (enabling act is simply the authority given to ministers to issue these declarations in the original act). Most important rule is when you are changing a law you must be given permission (parent/enabling act) e.g. Police Codes of Practice such as stop and search (made under PACE - police and criminal evidence act 1984) police officers have to log down that they have stop and searched someone

Question 9

By laws

Answer 9

laws made by local authorities that only apply to that specific area (nothing to do with parliament) laws made in a specific area e.g. illegal to drink alcohol, parking restrictions

Question 10

How id delegated legislation controlled?

Answer 10

Most of the time DL is not controversial, however things can be done so it isn’t abused to stop ministers from going to far
What can Parliament do?
Checks on the enabling act, this is where the original act will set out what ministers can and can’t do if delegated legislation is required in the future. Parliament can revoke these powers at any time.

Question 11

Affirmative resolutions

Answer 11

statutory instrument must be either approved, annulled or withdrawn. It can’t be amended

Question 12

Negative resolution

Answer 12

if an instrument passes that will ahead unless Parliament rejects it within 40 days

Question 13

Super affirmative resolution

Answer 13

when delegated legislation is made under the Legislative and Regulatory Reform Act 2006. Parliament is given greater controls in this area as ministers are given wide ranging powers (something more controversial)

Question 14

Scrutiny Committees

Answer 14

they can only scrutinise the technicalities of statutory instruments, not policy. They CAN refer any matters arising back to Parliament, but can’t make any changes

Question 15

Ultra vires

Answer 15

authority making delegated legislation has exceeded their powers, over their authority
When the courts deem that DL has gone beyond power given to it in the enabling act
The incorrect procedure was used and a decision was made unreasonably

Question 16

Judicial review

Answer 16

anyone can challenge an authority (public body) on a decision which they feel has been made unreasonably (take the gov to court)
E.g. believe rights have been violated/infringed

Question 17

Effectiveness of controls - Parliament

Answer 17

Parliament can scrutinise and question ministers, the problem is that because there is so much DL it is very difficult for Parliament to monitor everything. On the other hand, it is effective because MPs have the power to question DL and stop it.

Question 18

Parliament - detailed law

Answer 18

Needed to make society work more safely and efficiently. Parliament doesn’t have the time to deal with all the details needed. Using DL means that parliament has control, through the use of enabling Acts, of what regulations are passed.

Question 19

Parliament - local knowledge

Answer 19

For by laws, local councils know their own areas and can decide which areas need drinking bans or what local parking regulation there should be. It would be impossible for Parliament to deal with all the local requirements for every city, town and village in the country

Question 20

Effectiveness of control - Courts

Answer 20

Not effective as you have to wait for someone to challenge it in the courts, there has to be a process (judicial review) but the problem is that Parliament can ignore the courts, and don’t need to listen to the courts. The reason is because of parliamentary sovereignty but in reality parliament wouldn’t overrule the courts as their job is to uphold the rule of law.

Question 21

Courts - expert knowledge

Answer 21

Much legislation needs expert knowledge of the subject matter in order to draw up the most effective laws. It is impossible for Parliament to have all the knowledge needed to draw up laws for such things as controlling the use of technology, ensuring environmental safety, dealing with a vast array of different industrial problems or operating complex taxation schemes.
It is better for Parliament to debate the main principles thoroughly, but leave the detail to be filled in by those who have expert knowledge of it

Question 22

Courts - consultation

Answer 22

Particularly important for rules on technical matters, where it is necessary to make sure that the legislation is technically accurate and workable. By creating law through DL, ministers can have the benefit of consultation before having regulations drawn up.
Some enabling acts giving the power to make DL set out that there must be consultation with interested persons before the regulations are created. E.g. any new or revised police Code of Practice under the Police Criminal Evidence Act

Question 23

Advantages of DL

Answer 23

• Saves parliamentary time - parliament don’t have time to consider and debate every small detail of complex regulation
• Access to technical expertise - modern society has become very complicated and technical, so that it is impossible that MPs can have all the knowledge needed to draw up laws on complex areas
• Allows consultation - Ministers can have benefit of further consultation before regulations are drawn up
• Allows quick law making - parliament can take a considerable time and in an emergency parliament might not be able to pass law quickly enough
• Easy to amend - DL can be amended or revoked easily when necessary so that the law can be kept up to date

Question 24

Disadvantages of DL

Answer 24

• Undemocratic - giving decisions to individuals and decisions could have long term impacts
• Sub-delegation (someone has been given a job to do something) too many people are involved which results to miscommunication
• Large volume and lack publicity - gives rise to criticism, since it makes it difficult to discover what the present law is, the problem is aggravated by a lack of publicity
• Difficult wording - could be hard to interpret in the future