Delegated Legislation P2

Question 1

What is delegated legislation?

Answer 1

Laws made by an individual or body under the authority of Parliament.

Question 2

What is an Enabling Act?

Answer 2

It passes the power to make law to other bodies.

Question 3

What do enabling acts enable?

Answer 3

• King & privy council to make orders in council
• Ministers to issue statutory instruments
• Local Councils to issue by-laws

Question 4

Orders in Council

Answer 4

• Secondary legislation, made by king and privy council.
• Allows gov to make laws without it having to be debated/voted in parliament.
• Uses: emergencies//transferring powers//keep up with events

Question 5

Orders in council used?

Answer 5

• Misuse of drugs act 1971
• Changed class of cannabis from c to b.

+ Emergencies : Fuel Crisis in September 2000

Question 6

Privy council

Answer 6

• Body of advisers, most being senior members of either house.

Question 7

Statutory Instruments

Answer 7

• Made by gov ministers.
• Enforces provisions in existing legislation or amend.

Question 8

Use of statutory instruments

Answer 8

• Allows provisions to be brought into force at later date
• Allows detail that would be too complex to include in the broad framework of an enabling act.
• Update Law
• Respond to developments

Question 9

An example of statutory instrument

Answer 9

• Minister of transport in the road vehicles regulations 2003 banned use of mobile phones whilst driving.

Question 10

By-laws

Answer 10

• Local laws/regulations made by local authorities&public corporations.
• Apply to residents in area.
• Created under Local Government (Miscellaneous Provisions) Act 1982.

Question 11

Example of by-laws used

Answer 11

• Local authority: Manchester City council- Banning drinking in certain public spaces.
• Public corporation: South West Trains Limited Railway Bylaws ,, under Railways Act 1993, regulate passenger behaviour on trains and stations.

Question 12

Advantages of DL

Answer 12

• Saves time: parliament can’t deal w all detailed rules, dl allows more time to focus on national issues.
• Relevant expertise: dl allows ppl who understand industry to draft laws, overall more accurate and fit its purposes.
• Flexibility&Speed: dl introduced//amended easier which good for emergencies.

Question 13

Disadvntages of DL

Answer 13

• Undemocratic: dl often made by unelected, raises concerns as they don’t hold accountability if mistake occurs, can’t be voted out.
• Overused: large vol of dl passed makes it hard for ordinary people to keep up w laws, contrary to rule of law which aims to be ascertainable.
• Insufficient Scrutiny: vol of dl means less scrutiny, increasing possible errors and misuse,, limits usefulness of judicial review.
• Sub-delegation

Question 14

Control of DL by Parliament (4 listed)

Answer 14

• Enabling/ Parent Act
• Affirmative resolution
• Negative resolution
• Scrutiny Committees

Question 15

Approval of Parent Act

Answer 15

• Parliament has initial control over what powers delegated.
• Can also repeal powers at any point.

Question 16

Affirmative Resolution

Answer 16

• Minority of statutes subject to this, but if required it won’t become law unless parliament agrees (both houses rule in favour)
• Need for it will be included in the enabling act.
• Cant amend the SI, only approved,,annulled,,withdrawn.

Question 17

Negative Resolution

Answer 17

• Most SI subject to this, will become law unless rejected by parliament within 40 days.
• But many few will be looked at as there is so many.

Question 18

Scrutiny committees

Answer 18

• Joint committee on Statutory Instruments
• Reviews all SI, can draw attention of both houses toward them.
  -Required if : imposes tax,,charge//unclear,,deflective//beyond powers given under enabling legislation// retrospective effect not provided by the enabling act.
• Can only report, not alter or stop regulations becoming law.

Question 19

Control of DL by courts

Answer 19

Ultra vires
- Substantive (void and of no effect)
- Procedural (incorrect procedure used)
- Unreasonableness

Question 20

Ultra vires

Answer 20

Goes beyond the powers given by the parliament in the enabling act.

Question 21

Procedural ultra vires

Answer 21

Delegated body has failed to follow a procedure required under the legislation.

Question 22

Agricultural Training Board v Aylesbury Mushrooms 1972

Answer 22

• Procedural ultra vires
• Industrial Training Act 1964, allowed establishment of industrial boards to improve skills of workers.
• Void as broad failed to follow procedure, required interested to consult before new order made but didn’t consult as required.

Question 23

Substantive ultra vires

Answer 23

Delegated body used powers given to them for a particular reason for another unauthorised reason
Beyond the powers of the enabling act

Question 24

R v Home Secretary ex party Fire Brigades Union 1995

Answer 24

• Substantive ultra vires
• Criminal Justice Act 1988, included provisions for compensations scheme for victims of crime.
• They tried a diff, less generous scheme. This fuelled unlawful as home sec bound by law and couldn’t ignore//change without parliament consent.

Question 25

Unreasonable ultra vires

Answer 25

- Where a decision/law is made that is so unreasonable, no other body would have made it.

Question 26

Strickland v Hayes

Answer 26

- Bylaw was created that completely banned the use of obscene language, both in public and private places. The court found this bylaw to be unreasonable substantive ultra vires because it was too wide and unreasonable, interfering with personal freedoms and going beyond what was necessary for public order.

Question 27

Judicial Review

Answer 27

- Indirect control as it provides an independent check by judges on the validity of the DL.