Delegated Legislation

Question 1

Explain delegated legislation.

Answer 1

• Law is made by somebody other than Parliament, but with authority of Parliament,
  Authority to make DL is laid down in an Enabling Act (primarily legislation)
• Enabling Act creates framework of law + delegates power to others to make more detailed law in that area- DL (secondary legislation)

Question 2

Explain orders in council as a type of delegated legislation.

Answer 2

• King + Privy Council have authority to make Orders in Council.
• Privy Council: 500 members, including Prime Minister, senior judges + top bishops.
• Power to make Orders in Council is given through Enabling Act.
• Most formal type of DL.
• Made on a wide range of matters (e.g. making new laws in emergency situation under Civil Contingencies Act 2004).
• Example: Al Qa’ida Talliban Order 2003- made any dealings with organisation unlawful.

Question 3

Explain statutory instruments as a type of delegated legislation.

Answer 3

• Made by gov ministers + gov departments for their particular area of responsibility.
• Power to make SI is given through Enabling Act.
• Often made to update law (e.g. changing min wage)
• Over 3,500 made each year.
• Delay law so people can prepare, understand + learn law before it comes into action.
• Example: SI No 2695 Road Traffic Act 1988: using mobile phones whilst driving was banned.

Question 4

Explain by-laws as a type of delegated legislation.

Answer 4

• Made by local authorities/councils + some other public bodies/corporations.
• By-Law must be approved by relevant Gov Minister before it becomes law.
• Power for them to make by-laws is given through Enabling Act.
• Only local law.
• Banned activity must have a sign showing its prohibited.
• Example: Solicitors Act 1974: allows Law Society to regulate conduct of its members through by-laws.

Question 5

State the 7 ways parliament can exercise control over delegated legislation.

Answer 5

• Enabling Act
• Delegated powers scrutiny
• Affirmative resolution
• Negative resolution
• MP questions
• Scrutiny committee
• Legislative + Regulatory Reform Act 2006

Question 6

Explain the Enabling Act + Affirmative Resolution as ways parliament can exercise control over delegated legislation.

Answer 6

• Enabling Act: parliament has initial control over powers delegated to each source through EA. Sets out limits within any laws including: which gov minister can make regulations, types of laws, e.t.c.
• Affirmative Resolution: SI wont become law unless specifically approved by parliament. Must be expressed in EA. Needed before any new police codes of Practice under Police + Crim Evidence Act 1984 can be enforced.

Question 7

Evaluate the effectiveness of parliamentary control.

Answer 7

• Generally effective- 7 types of DL to ensure power isn’t being abused, at various stages.
• Negative- lots of DL to check, only referred if there’s a problem not amended.

Question 8

Explain judicial control over delegated legislation.

Answer 8

• Used once DL has been created + is an active law.
• DL can be challenged in courts on grounds its ultra vires: ‘goes beyond powers Parliament granted within EA.’
• If decided DL is ‘ultra vires’ its void + no longer effective.
• Anyone can challenge any law at any time.
  Courts presume unless EA expressly allows it, there’s no power to:
  1) Make Unreasonable Regulations
• Strickland v Hayes Borough Council
  2) Levy Taxes
  3) Allow Sub-Delegation
  There’s 2 Types Of Ultra Vires:
  1) Substantive Ultra Vires:
• A-G v Fullham Corporation: DL goes beyond limits set out in EA.
  2) Procedural Ultra Vires:
• The Aylesbury Mushroom Case: correct procedures haven’t been followed when making DL.

Question 9

Evaluate the effectiveness of judicial control.

Answer 9

• Generally effective- good range of controls to look at DL once in action.
• Effectiveness is limited- judge can only declare it void not amend it.

Question 10

State + explain the advantages of delegated legislation.

Answer 10

• Allows Quick Law Making: orders in council can be made to cover emergency situations, under the Civil Contingencies Act 2004.
• Saves Parliament Time: 3,500 SI per year- if went through Parliament it would have taken much longer.

Question 11

State + explain the disadvantages of delegated legislation.

Answer 11

• To An Extent, Undemocratic: we don’t vote in King + Privy Council.
• Large Volume + Lack Of Publicity: SI- over 3,500 per year.