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Unit 1 section A - Delegated Legislation Flashcards

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1
Q

What is delegated legislation?

A

Law is created by a body that’s not parliament w/ the authority of parliament

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2
Q

Why is DL used?

A

Adds detail to a piece of law or makes changes to an act, when it’s not practical to make a new one.

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3
Q

Why does Parliament need to delegate power?

A
  • Don’t have expertise to make certain laws
  • Don’t have local knowledge to make laws on certain subjects
  • Limited time
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4
Q

How does Parliament delegate power?

A

Via the enabling act e.g. The Road Traffic Acts 1989

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5
Q

What are the 4 forms of DL?

A
  • Statutory interpretation
  • byelaws
  • Orders in Council
  • Devolution
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6
Q

Who are SI’s made by?

A

Made by govt. departments on technical expertise, make up almost 3k of DL every year.

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7
Q

Who are SI’s made by?

A
  • Made by govt. departments on technical expertise, make up almost 3k of DL every year.
  • Drafted by legal office of relevant govt. departments, consulting w/ interested departments
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8
Q

What control’s are used on SI’s by parliament?

A

Affirmative or negative resolution

-Affirmative:
(Enabling Act has to say it’s affirmative, if not, it’s neg). Dl will not become Law unless approved by Parliament.
-Negative:
Dl will become law unless rejected by parliament within 40 days.

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9
Q

Example of SI’s

A

-Road traffic Act 1988

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10
Q

What are byelaws?

A
  • Made by local authorities & public corporations
  • incl. matters of concern
  • Made w/ awareness of local issues e.g. dogs on the beach in the summer may be an issue, so impose a ban of dogs on the beach between may-sep.
  • Accompanied for fines for non-observance
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11
Q

Examples of byelaws

A

-Banning of dogs on Aberavon beach between may-sep.

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12
Q

Who are orders in council made by and when?

A
  • Made by privy council under emergency situations under Emergency Powers Act 1920 & Civil Contingencies Act 2004
  • Are approved by privy council and the Queen
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13
Q

How many members does the Privy Council made of and who?

A
  • 420 full-time members

- Made up of govt. ministers, PM and commonwealth

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14
Q

What are two types of Orders In Council?

A
  • Royal Prerogative

- Statutory

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15
Q

What are the 5 types of Parliamentary controls on DL?

A
  • Affirmative resolution
  • Scrutiny Committee
  • Negative resolution
  • Super-Affirmative Procedure
  • Consultation
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16
Q

What is Affirmative resolution?

A

-Used for SI’s & SI needs to be put before the HOL & HOC & they must approve it

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17
Q

What is an advantage of affirmative resolution?

A

-Gives control to HOC & HOL to reject it if they’re not happy

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18
Q

What are the disadvantages of affirmative resolution?

A
  • Time-consuming

- HOC/HOL can’t modify it, only approve or reject

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19
Q

What is negative resolution?

A
  • No debate on SI, will become law in 40 days, unless rejected by parliament.
  • Used to pass two thirds of SI’s
  • Offers limited control over delegated authority
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20
Q

Advantage of negative resolution

A

-Gives chance to MP’s to reject SI’s if not happy

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21
Q

Disadvantages of negative resolution

A
  • Too loose of a control

- Can’t modify it only approve or reject it

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22
Q

What is super-affirmative procedure?

A
  • Used to oversee legislative reform orders.

- Reports must be produced & HOC/HOL must accept/reject order.

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23
Q

Advantage of Super-Affirmative Procedure

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A

Provides HOC/HOL more power & control to analyse order.

24
Q

What is Consultation?

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A

Many enabling acts need consultation w/ interested parties or those affected by DL, to give their opinion.

25
Advantage of Consultation
Enabling Act is a control in itself, sets boundaries for delegated body.
26
Disadvantage of Consultation
Not all enabling acts use consultation
27
Who are the Scrutiny Committee
- Reviews technical merits of all draft SIs. | - Informs to Parliament SI’s of concern e.g. exceeds powers.
28
Advantages of Scrutiny Committee
Acts as filter, so Parliament only looks at small NO of SI’s.
29
Disadvantages of Scrutiny Committee
Their findings are often ignored
30
Explain what occurs in Judicial Review of SI in QBDC of High Court
- Challenged by person who’s been affected by Law. - Judicial Review challenges legality of action, decision or failure to act by public body. - Judge reviews SI & decides if it’s ultra vires (UV) - If so DL will be declared void.
31
Disadvantage of Challenging SI through Judicial Review
- Can be 30K+ if case goes to full hearing. | - Legal Aid not available.
32
What are the 3 Judicial Controls?
- Procedural Ultra Vires - Substantive Ultra Vires - Unreasonableness
33
What is Procedural Ultra Vires (PUV)
- When procedure for making law in enabling act, isn’t followed - e.g. consultation required not carried out.
34
What is an example case for PUV?
Agricultural Training Board v Aylesbury Mushrooms (1972)
35
Explain the Agricultural Training Board v Aylesbury Mushrooms (1972)
- Enabling Act needed parties to be consulted before making law. - Minister failed to consult mushroom growers union, thus correct procedure wasn’t followed. - So declared PUV
36
What is Substantive Ultra Vires (SUV)
Where DL goes over what Parliament intended.
37
What is an example case for SUV?
Customs & Excise v Cure & Deeley Ltd (1962)
38
Explain the Customs & Excise v Cure & Deeley Ltd (1962) case
-Excise Commissioners tried to impose tax & decide amount to be collected, but went beyond power given by Parliament.
39
What is Unreasonableness
When a minister makes a decision no other reasonable person would make in similar situation.
40
What is an example case for Unreasonableness?
Picture House vs Wednesbury Corporation (1947)
41
Explain the Picture House vs Wednesbury Corporation (1947) case?
Cinema banned under 15’s from attending on Sunday, they challenged it wasn’t unreasonable, but courts disagreed.
42
Briefly outline all the Advantages of DL
- Flexibility - Time - Speed - Expertise - Local Knowledge - Democratic - Easily Removed
43
Briefly outline all the Advantages of DL
- Flexibility - Time - Speed - Expertise - Local Knowledge - Democratic - Easily Removed
44
Explain how Flexibility is an Advantage of DL?
DL often for amending existing legislation, easier to use DL, than pass new Act of Parliament.
45
Explain how Time is an Advantage of DL?
No time for Parliament to pass all laws, delegating it to other bodies saves them hassle.
46
Explain how Speed is an Advantage of DL?
Quicker to pass DL, then new act of Parliament, good for emergencies.
47
Explain how Expertise is an Advantage of DL?
Allows law to be made by bodies w/ expertise, MP’s don’t have e.g. health laws
48
Explain how Local Knowledge is an Advantage of DL?
Byelaws created by local authorities, know needs of local ppl, not available to Parliament.
49
Explain how Democratic is an Advantage of DL?
Gov Ministers responsible for SI’s are elected.
50
Explain how Easily Removed is an Advantage of DL?
If necessary if causing problems. | Acts of Parliament would need another Act to either amend or abolish it.
51
Briefly outline all the Disadvantages of DL
- Volume - Undemocratic - Lack of Control - Lack of Publicity
52
Explain how Volume is a disadvantage of DL?
Lot of DL’s made each yr, laws hard to keep up w/ e.g. 3K SI’s made alone.
53
Explain how Undemocratic is a disadvantage of DL?
Laws made by unelected bodies, ppl feel laws should be made only by Parliament.
54
Explain how Lack of Control is a disadvantage of DL?
Many SI’s passed using negative revolution, loose control of DL. Also if consultation’s not required it’s not carried out. Orders in Council & Byelaws have limited control by Parliament.
55
Explain how Lack of Publicity is a disadvantage of DL?
Even if on internet may be hard to find laws

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