delegated legislation

Question 1

how are SI’s made

Answer 1

SI’s aren’t subject to debate in either house and don’t have to follow open procedures. SI’s are often introduced to bring an act into force or to introduce detailed rules that hadn’t been debated in either house. often introduced by a government minister using discretionary powers that have ben given by an act.

Question 2

what powers are delegated in proceeds of crime act 2002?

Answer 2

the act gave powers to confiscate the benefits of crime from convicted criminals, now available for drug related crimes, non-drug indictable offences and certain summary offences. only available following a conviction- recovers money and benefits obtained from the criminal conduct.

Question 3

which SI’s amended the Proceeds of Crime Act

Answer 3

introduced in 2009, proceeds of crime act 2002 order 2009.

Question 4

what is the enabling act?

Answer 4

an act created by parliament in order to delegate its power to another body and the resulting legislation can take one of three forms.

Question 5

who makes SI’s

Answer 5

government ministers

Question 6

who makes orders in council

Answer 6

the privy council

Question 7

who makes bylaws

Answer 7

councils and public corporations

Question 8

give an example of a SI that can be used to amend an existing act of parliament

Answer 8

national minimum wage (amendment) regulations 2016. amended minimum wage act 1998 to increase the amount paid to include a ‘national living wage’ of £7.20

Question 9

give an example of an SI that can be used for commencement order: bring an act into force

Answer 9

coroners and justice act 2009 (commencement No. 10) order 2012. the use of live video links at a preliminary hearing in a magistrates court where the accused is I police detention at a police station

Question 10

true or false SI’s can be used to add details to acts

Answer 10

true

Question 11

give an example of SI’s being used to comply with EU directives

Answer 11

money laundering (amendment ) regulations 2012 amended the money laundering regulations 2007to (among other things) change the definition of ‘estate agents’ to include those selling property outside the UK

Question 12

approximately how many SI’s are made a year

Answer 12

3500

Question 13

give an example of an order in council used to transfer the responsibilities between Government departments

Answer 13

Moving powers of Welsh office to Welsh assembly- National Assembly of Wales (transfer of functions) order 1999

Question 14

what are orders in council used for? (7)

Answer 14

1. transfer responsibilities between government departments,
2. bring acts of parliament into force
3. comply with EU directives
4. deal with foreign affairs
5. deal with national emergencies under the civil contingencies act 2004 when parliament is not sitting and the emergency powers act 1920
6. alter the number of judges in the supreme court under the constitutional reform act 2005
7. amend acts

Question 15

give an example of an order in council used to deal with national emergencies under the civil contingencies act 2004 when parliament is not sitting and the emergency powers act 1920

Answer 15

during full crisis 2000- energy act 1976 (reverse powers ) order 2000

Question 16

give an example of an order in council used to deal with foreign affairs

Answer 16

Afghanistan (UN sanctions) order 2001- offence for anyone to pass funds to Osama Bin Laden or the Taliban

Question 17

give a few examples of what Bylaws regulate

Answer 17

traffic control, parking restrictions, drinking in public places

Question 18

what can SI’s be used to do? (4)

Answer 18

1. amend existing acts of parliament
2. commencement orders: bring an act into force
3. add details to acts
4. comply with EU directives

Question 19

give an example of a Bylaw made by local authorities

Answer 19

environment agency wales rod fishing bylaw 2012- regulates where and what you can fish on the river wye

Question 20

give an example of a bylaw used by public corporations for matters involving the general public

Answer 20

train companies under the transport act 1993 regulating conduct on the railways use of offensive language , buying tickets etc.

Question 21

which type of law is most likely to be used in this situation: the transfer of responsibilities for international development from the foreign office to a newly created ministry.

Answer 21

privy council - orders in council

Question 22

which type of law is most likely to be used in this situation: a law re-routing a public footpath

Answer 22

Bylaws- local authorities

Question 23

which type of law is most likely to be used in this situation: laws dealing with the storage of dangerous chemicals

Answer 23

statutory instruments- government ministers

Question 24

which type of law is most likely to be used in this situation: an increase in the maximum penalty for speeding

Answer 24

statutory instruments- government ministers

Question 25

which type of law is most likely to be used in this situation: an entirely new kind of criminal offence, aimed at preventing stalkers

Answer 25

act of parliament

Question 26

explain the judicial controls in relation to the control of Delegated Legislation

Answer 26

DL can be challenged in the courts if it goes beyond the powers that parliament granted in the enabling act. if this is so the DL will be declared as Ultra Vires(beyond the powers of). This is usually done through a process known as judicial review where an applicant can ask the QBD of the HC to grant request to look at legality of the piece of DL. this decision can then be appealed to CoA +/ SC

Question 27

explain procedural Ultra Vires with an example

Answer 27

A court may find a piece of DL is ultra vires on the grounds that a minister had failed to follow a procedural requirement as laid out in the enabling act. E.G. Aylesbury mushroom case (1972) minister did not consult the mushroom growers association and was required to by the enabling act

Question 28

explain substantive Ultra Vires

Answer 28

concerns whether the content of the DL is within the limits set out by the enabling act.

Question 29

give two examples of substantive ultra vires

Answer 29

1. R v See. of state for social welfare of immigrants(1996) - minister used SSA 1992 to prevent asylum seekers from receiving social benefits. the SSA was meant to provide extra rights to asylum seekers not remove them therefore minister didn't have power. 2. customs and excise V care and Deeley 1962 - the financial act gave customs and excise power to make what ever laws they wanted this was ultra vires as it gave them more power than parliament

Question 30

explain the term locus standi

Answer 30

the process of judicial review by the QBD of the HC relies on someone bringing a case because they are affected by the law, it is the right or capacity to bring an action or to appear in a court

Question 31

explain a case that was declared ultra vires on the basis of unreasonableness

Answer 31

R v Swindon NHS Trust 2006- access to a cancer drug was refused and this was deemed to be unreasonable by the NHS Trust because she would have been able to access the drug in a neighbouring trust.

Question 32

which case was ultra vires on the basis of unreasonableness established in

Answer 32

picture houses v Wednesbury corporation 1948

Question 33

what is the other reason to SI's being declared void

Answer 33

SIs can be declared void if they conflict with EU law and judges have the power to challenge compatibility under Human rights act 1998

Question 34

which section of the human rights act states courts have the power to make a 'declaration or incompatibility'

Answer 34

S4 human rights act 1998

Question 35

what is meant by the term 'declaration of incompatibility'

Answer 35

this means that an act/ DL has violated human rights in some way

Question 36

give examples about the effectiveness of the controls on DL in parliament

Answer 36

1. commons select common procedure 2000 "SIs do not receive enough scrutiny in proportion to its merits" 2. only affirmative procedure allows for debate e.g. amendments under PACE 1984 and regulative procedure often includes significant changes 3. time and resources are too stretched to review DL

Question 37

give examples about the effectiveness of the controls on DL in the courts

Answer 37

1. depending on a person challenging the validity of the law with determination and resources e.g. R(Haw) v Home Secretary 2005 2. therefore some DL is ultra vires but is not challenged and remains in force because no locus standi or members of the public do no want challenge- expensive! 3. S-O-P (separation of powers)- judiciary's increased power from the Human rights act 1998 can challenge any public body.

Question 38

list some advantages for DL

Answer 38

1. it saves parliament time 2. it can be passed quickly in emergencies 3. it uses specialist knowledge (and parliament doesn't need to fill in the detail) 4. it is democratic and parliament can control its use 5. its easier to amend to reflect current circumstances

Question 39

list some disadvantages of DL

Answer 39

1. using DL is undemocratic 2. it contradicts the separation of powers principle 3. there is a risk of sub-delegation 4. there are no enough effective controls (affirmative, parliamentary procedure, judicial procedure) 5. lack of publicity 6. expert knowledge