Delegated Legislation

Question 1

What are the three types of delegated legislation

Answer 1

1. Orders in council
2. By-laws
3. Statutory instruments

Question 2

Orders in Council

Answer 2

• drafted by Government departments and approved by the King and Privvy Council (made up of the PM and other senior politicians)
• this type of DL effectively allows the government to make legislation without it having to be debated or voted on in Parliament
• these are used in times of emergency under the Civil Contingencies Act 2004. They can also be used when Parliament are not sitting such as summer recess

Question 3

1. Example of an order in council

Answer 3

Cannabis Classification:
Cannabis was reclassified from a Class B drug to a Class C. Due to false information an order in council had to be used to move it back up to a B

Question 4

2. Example of an order in council

Answer 4

2011 riots:
An order in council was used to give the police power to arrest the looters and harsh sentences were given to those who committed a crime

Question 5

By laws:

Answer 5

• Can be made by local authorities that are given the power by Parliament to make laws which affect local matters and control their local area e.g. Stockport Council
• by-laws can also be made by public corporations/companies
• they are mostly created under the Local Government Act 1982 and must be ‘confirmed’ by the relevant secretary of state

Question 6

1. Example of a By-Law

Answer 6

In the case of Boddington v British Transport Police, Peter Boddington was found to be smoking in a non-smoking carriage on a train and he was fined £10. Peter boddington challenged the validity of this by law as it was not made by Parliament. The Lords said that Bylaws must be followed, and if broken then a fine is payable

Question 7

Statutory instruments

Answer 7

• Made by government departments. The power will be given to a minister who heads a particular department
• around 3000 are made every year
• these are known as regulations and they are national in effect
• the power to make statutory instruments is outlined in an Enabling act

Question 8

1. Example of statutory instruments

Answer 8

The dangerous dogs act 1991 as more dogs were added later by the home secretary.
And in 2024 XL Bullies were also later added

Question 9

Examples of Government departments who create statutory instruments

Answer 9

• Department for Education
• Department of Health
• Department for transport

Question 10

What are the 5 needs/reasons for the use of delegated legislation

Answer 10

1. Time
2. Technical expertise and knowledge
3. Consultation
4. Flexibility
5. Future needs (emergency)

Question 11

1. Time

Answer 11

Parliament needs to spend its time debating, discussing and considering important issues such as education and healthcare
DL means other bodies can deal with other (sometimes smaller) issues

Question 12

2. Technical expertise and knowledge

Answer 12

Parliament does not have the knowledge to deal with all the details required in all areas
The body making the law through DL will be more specific

Question 13

4. Future needs (emergency)

Answer 13

Laws can be made quickly in times of emergency.
If only parliament could make laws they couldn’t deal with situations as it takes 18 months to pass an act of parliament

Question 13

3. Consultation

Answer 13

DL gives experts outside of the Gov the opportunity to influence its content
The enabling act may require the minister or another legislator to consult with specified people or organisations

Question 14

5. Flexibility

Answer 14

The law can be changed, amended or updated without going through the formal process of statute making
This is much quicker and easier

Question 15

What are the two types of controls of DL

Answer 15

Controls by Parliament
Controls by the courts

Question 16

What are the 3 controls of DL

Answer 16

1. The enabling act (parent act)
2. Affirmative and negative resolution procedures
3. Scrutiny committees

Question 17

1. The enabling act

Answer 17

• before a law making power is delegated, parliament can ensure that the power is properly used by making an enabling act. It must state exactly who the law-making power is delegated to and the procedure they must follow if they want to use it. Some enabling acts specify a period of consultation is necessary before any laws are made
• parliament also retains control as it can repeal (remove) the powers in the EA at any time as well as being able to limit or extend them

Question 18

Example of the enabling act

Answer 18

For example, the Civil Contingencies Act 2004 states that orders in council can be made in times of emergency. The privvy council cannot make emergency laws in any other situation

Question 19

2. Affirmative and negative resolution procedures

Answer 19

Parliament also has some control over statutory instruments in the way that government ministers create them as it will say in the enabling act which procedure they need to use
There are three types of procedures

Question 20

2. What are the three types of procedures

Answer 20

• Negative resolution procedures: presented to parliament. After 40 days if no one in parliament has objected the law becomes permanent
• Affirmative resolution procedures: this is for matters that are controversial and must be debated on and voted upon by one of the houses before becoming law
• super affirmative procedure: this reduces parliaments control and allows ministers to make changes to a statutory instrument within 60 days

Question 21

3. Scrutiny committees

Answer 21

These committees were set up within Parliament to check and review delegated legislation

Question 22

3. What are the 3 types of scrutiny committee

Answer 22

1. Joint committee on statutory instruments
2. The house of lords delegated powers scrutiny committee
3. The house of lords merits of statutory instruments committee

Question 23

3. Joint committee on statutory instruments

Answer 23

Consists of member from the HoC and the HoLs it is responsible for checking statutory instruments
If it finds there are errors, it can report its findings to Parliament but ultimately cannot make any amendments itself. It will scrutinise the legislation and identify any instrument which
- impose tax or change
- has gone beyond the powers in the Enabling Act

Question 24

The house of lords delegated powers scrutiny committee:

Answer 24

They keep under constant review the extent to which legislative powers are delegated by Parliament to government ministers

Question 25

The house of lords merits of statutory instruments committee

Answer 25

They examine the content of any statutory instrument that is subject to the parliamentary procedure

Question 26

What are the 2 controls of the courts on delegated legislation

Answer 26

1. Judicial review 2. Ultra Vires

Question 27

Judicial review:

Answer 27

Where a citizen (member of the public) believes that he has been affected by a regulation or by-law, which was ultra vires, they can apply to the kings bench division (in the high court) for a judicial review. If this is granted, the court would first issue an injunction, which stops the regulation or bylaw whilst the case is happening

Question 28

Ultra vires:

Answer 28

Government ministers and local authorities may go beyond the powers they have been given in parliament. If they do so, this will be classed as an ultra vires action. If judge’s rule that it is ultra vires then it is considered bad law and will be declared void

Question 29

What are the three types of ultra vires action:

Answer 29

1. Procedural Ultra Vires 2. Substantive Ultra Vires 3. Unreasonable

Question 30

1. Procedural ultra vires

Answer 30

where a procedure was set out in the Enabling Act so a citizen may challenge if this procedure was not followed

Question 31

1. Aylesbury mushroom

Answer 31

Facts: ministers of labour failed to follow the correct procedure as he failed to consult the Mushroom growers association Held: Order was declared invalid

Question 32

2. substantative ultra vires

Answer 32

delegated legislation may be declared void if it allows something that the enabling act did not intend

Question 32

R (Ann Summers LTD) v Jobcentre Plus

Answer 32

Facts: the job centre refused to advertise jobs to work in Ann Summers shops. Held: the court held that the job centre didn't have the power to do this and declared it void

Question 33

R v Secretary of State for Health ex parte Pfizer

Answer 33

Facts: the minister of health was found to have acted ultra vires when advice was sent out to doctors telling them not to prescribe Viagra

Question 34

Durand Academy v Ofsted 2017

Answer 34

facts: DA brought a case of judicial review against OFSTED when they were judged as inadequate. The academy complained because of no appeals process Held: HC concluded that it was not a rational or fair process and because of this, there was no real process preventing them from pursuing a substantive challenge

Question 35

unreasonable

Answer 35

this is often known as the Wednesbury Principle as it was established in the case of Associated Provincial Picture Houses v Wednesbury Corporation. Unreasonable is sometimes when a provision is drafted too wide to achieve its purpose

Question 36

Strictland v Hayes Borough Council

Answer 36

Facts: a bylaw prohibiting the singing of an obscene song and the use of obscene language in general Held: was held to be unreasonable and so ultra vires