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Law Paper 2 - Tort + Legislation > Delegated Legislation > Flashcards

Delegated Legislation Flashcards

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1
Q

What is an enabling act?

A

A piece of legislation passed by parliament giving other bodies like Local Authorities (Councils) the power to make laws

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2
Q

What type of legislation is an enabling act?

A

Primary legislation

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3
Q

What is primary legislation?

A

Legislation passed by parliament

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4
Q

What is secondary legislation?

A

Local laws (by laws) passed by local authorities after using an enabling act

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5
Q

What are the main reasons for by laws?

A

Saves parliamentary time
Local knowledge - Councillors know about particular problems in their area better than MPs across the country
Expertise can be used to draft law

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6
Q

What are by laws?

A

Local laws passed by local authorities after using an enabling act

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7
Q

What is an example of primary legislation being used to make secondary legislation?

A

Public Health Act 1907 (Primary) was used by Weymouth and Portland BC to pass a by law (Secondary) saying ‘no person can ride a bicycle or tricycle whether propelled mechanically or by other means along a promenade’

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8
Q

What act allows local authorities to make laws in certain areas?

A

Local Government Act 1972

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9
Q

What does the Local Government Act 1972 do?

A

Allows local authorities to make laws in certain areas

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10
Q

What is another example of secondary legislation?

A

Trafalgar Square and Parliament Square By Law 2002

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11
Q

Who created the Trafalgar Square and Parliament Square By Law 2002?

A

Greater London Authority

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12
Q

What did the Trafalgar Square and Parliament Square By Law 2002 state?

A

Birds must not be fed
Bird feed must not be distributed

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13
Q

Can public corporations and companies make laws?

A

Yes, as long as it is within their jurisdiction and the parliament allows it

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14
Q

What is the National Trust Act 1907?

A

Allows the National Trust to make by laws for areas of land and buildings that they own

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15
Q

Do by laws have to be respected?

A

Yes, they have the full force of the law, and a judge will enforce them and impose sanctions just like any other law

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16
Q

Who makes statutory instruments?

A

Government ministers who head up government departments

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17
Q

What are some examples of head government ministers?

A

Minister for Education
Minister for Transport
Minister for Healthcare

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18
Q

What act gives the executive wide powers to make delegated legislation?

A

The Legislative and Regulatory Reform Act 2006

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19
Q

What does the Legislative and Regulatory Reform Act 2006 do?

A

It gives the executive wide powers to make delegated legislation which allows legislative reform orders that amend acts

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20
Q

What are statutory instruments?

A

A form of delegated (secondary) legislation made by government ministers under powers given to them by an Act of Parliament

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21
Q

How many statutory instruments get passed in the UK each year?

A

Roughly 3000

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22
Q

What do many statutory instruments require?

A

Specialist knowledge meaning ministers can draw upon the experience of those within their departments as MP’s will often lack the technical ability to deal with these matters

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23
Q

Who drafts statutory instruments?

A

Civil servant lawyers

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24
Q

Are statutory instruments respected?

A

Yes, they are enforced by the courts and carry the full force of the law

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25
What do more contentious statutory instruments have and what does this mean?
An affirmation procedure or a negative resolution procedure and this means that MPs can debate on the issue even if the issue is not important enough for a full act of parliament
26
What are some examples of enabling acts that allow the creation of statutory instruments?
National Minimum Wage Act 1998 Police and Criminal Evidence Act 1984 Constitutional Reform Act 2005 Railways Act 2005
27
What does the National Minimum Wage Act 1998 allow as an enabling act?
Regular increases in the amount of national minimum wage by means of statutory instrument
28
What does the Police and Criminal Evidence Act 1984 allow as an enabling act?
Gives power to the Minister for the Home Office to produce codes of practice for police
29
What does the Constitutional Reform Act 2005 act allow as an enabling act?
Gives power to the Lord Chancellor to issue guidance on the procedures for Judicial Appointments Commission
30
What is the Railways Act 2005 an example of?
Where an enabling act is used to bring an Act into force, known as a commencement order Railways Act 2005 Commencement Orders
31
Who does the Privy Council consist of?
Current and former government ministers, other senior politicians from opposing parties, members of the royal family, Archbishops and senior judges
32
How many members are in the Privy Council?
Up to 420, however most are not active members
33
What do the Privy Council pass?
Order in Council
34
What act gives the council the authority to make laws?
The Emergency Powers Act 1920
35
When are Orders in Council used?
Dissolving parliament before an election Bringing an Act of Parliament into force Compliance with EU Directives Dealing with Foreign Affairs National Emergency, when parliament is not sitting
36
What are the details of the use of Orders in Council to comply with EU directives?
Used to comply with EU regulation but not due to BREXIT this is no longer a use
37
What are the details of the use of Orders in Council for foreign affairs?
Afghanistan Order 2001 made it an offence to give funds to the Taliban or Osama Bin Laden
38
What are 2 examples of Orders in Council being used for national emergencies when parliament are not sitting?
Following 9/11, the Terrorism Order 2001 was made using the United Nations Act 1946 allowing the freezing of funds for those supporting terrorism The 2000 fuel crisis where truck drivers were blockading refineries led to petrol stations running out of fuel led to the Energy Reserve Act 1976 (Reserve Powers) Order 2000 coming into force under the Energy Act 1976 which enabled movement of fuel throughout the country
39
What are the advantages of delegated legislation?
Saves parliamentary time Speed Use in emergencies Specialist knowledge Local knowledge Flexibility Ease of future changes
40
What are the disadvantages of delegated legislation?
Too much of it Lack of publicity Lack of debate Less democratic Sub-delegation Lack of parliamentary control Lack of judicial controls Ministers are making laws
41
How can parliament supervise delegated legislation?
Revocation Negative resolution procedure Affirmative resolution procedure Super-affirmative procedure Committee supervision MPs can debate in parliament House of Lords can veto
42
What is revocation of delegated legislation?
Parliament can revoke any delegated legislation or pass legislation on the same subject which will then be followed rather than the delegated legislation
43
What is the negative resolution procedure?
Delegated legislation is put before parliament Any MP has 40 days to lay down a motion to have it annulled If it is by the official opposition then it is guaranteed to be dealt with Debate and a vote will be held leading to the DL being kept or the annulment motion being passed which cancels the DL
44
What is the affirmative resolution procedure?
Enabling acts dealing with important matters that may have constitutional significance allow for a debate and a vote in parliament The Police and Criminal Evidence Act 1984 requires an affirmative resolution procedure in both houses before amendments to police powers and procedure come into force
45
What is the super-affirmative procedure?
Used to check legislative reform orders Here parliament has greater powers to scrutinise proposed DL and changes can be made to the proposed DL It must be agreed by both houses
46
What is committee supervision?
A parliamentary committee watches over the making of DL but cannot consider its merits The Joint Committee on Statutory Instruments will refer matters back to Parliament if it is defective, exceeds its powers or imposes a tax
47
What is the point that the HoL can veto and an example?
All DL can be vetoed by the House of Lords unlike actual legislation For example, HoL vetoed an order imposing sanctions against Rhodesia (Zimbabwe) made under the Southern Rhodesian Act 1965
48
How can courts challenge delegated legislation?
If it is 'ultra vires' - meaning it has gone beyond the powers laid down in an enabling act It is done by means of judicial review and if it is successfully proven then the DL is declared void
49
What is procedural ultra vires?
Procedures are laid down in an enabling act and if these have not been followed then the DL will be declared void
50
What is an example of procedural ultra vires?
Agricultural, Horticultural & Forestry Training Board vs Aylesbury Mushrooms
51
What happened in Agricultural, Horticultural & Forestry Training Board vs Aylesbury Mushrooms?
An order was declared invalid here as the enabling act had said they must consult with interested parties, and they had not done so
52
What is substantive ultra vires?
Where DL goes beyond the powers granted to it by parliament in an enabling act
53
What is an example of substantive ultra vires?
Attorney General vs Fulham Corporation
54
What happened in Attorney General vs Fulham Corporation?
Where the corporation were given powers to build a washhouse and instead built a laundry so was held to be ultra vires
55
What is unreasonableness?
If the rules are 'manifestly unjust' the courts can declare them invalid
56
What is an example of unreasonableness?
Strickland vs Hayes
57
What happened in Strickland vs Hayes?
A by-law prohibited rude or obscene songs but was drawn up too widely and should really only have applied to the public arena but was drawn up to include apply to songs in private as well, so it was declared manifestly unjust
58
What are the other 2 ways delegated legislation can be controlled that isn't connected to the courts or parliament?
Consultation Publication
59
What is consultation?
Those making and drafting legislation often consult with experts and those likely to be affected by it
60
What is an example of consultation?
For traffic regulations you might consult the public, traffic wardens, local authorities, the police or the AA and RAC etc.
61
What is publication?
All delegated legislation must be published, therefore in theory is available for public scrutiny

Law Paper 2 - Tort + Legislation (12 decks)

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