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DL

Law Unit 1

QuestionAnswer
What is Delegated Legislation? Law made by persons or bodies other than Parliament BUT with authority from Parliament
What is the Parent Act? The authority given to other bodies to make law
What are the 3 key things that the Parent Act specify? - When it is made - Who can make it - Procedure
Why do we need DL? - Saves time - Expert knowledge - Local knowledge - Consultation
Why do we need expert knowledge in DL? Parliament may lack technical expertise
Why do we need local knowledge in DL? Difficult for Parliament to deal with all the local towns, cities and villages
Why do we need consultation in DL? Ministers may benefit from consultation before making laws e.g. with Police
What are the types of DL? - Order in Council (OIC) - Statutory Instruments (SI) - By- Laws
Who makes OIC? The Privy Council and the Queen
Who makes up The Privy Council? Senior politicians, judges and the members of the Royal family
When is the OIC made? National Emergency when Parliament is not sitting - Emergency Powers Act 1920/ Civil Contingencies Act 2004
Give an example of OIC? Misuse of Drugs Act 1971- in 2003, an OIC issued to alter the class of cannabis to class C but changed back to class B
Who makes SI? Gov. ministers for their area of gov. responsibilities
When are SI made? -Update laws -Update fines for criminal offences -Commencement Orders; states when a law comes into place
Give an example of SI? Increase National Minimum Wage Act 1998
What does OIC stand for? Order in council
What does SI stand for? Statutory Instruments
Who do By-Laws affect? A specific area e.g. a town
Who makes By-Laws? Local Authorities and Public Bodies/Companies
Under what act gives power to local authorities to make by-laws? Local Gov. Act 1972
Give an example of By-Laws? You get fined when you don't pick up your dog faeces under the Clean Neighbourhood and Environment Act
Why are controls needed for DL? The people who make DL are not democratically elected so powers are not abused or misused
What are the 2 types of of controls on DL? Parliamentary and Judical
When are Parliamentary controls used? Before a DL comes into force
Where is Parliamentary controls used? In Parliament
When are Judicial controls used? After DL comes into force
Where are Judicial controls used? In courts
What are the 9 Parliamentary controls? -Limitations in the Parent Act -Removal of the Parent Act -Amendment/Repeal -Scrutiny Committee -Affirmative Resolution -Negative Resolution -Joint Select Committee -Questioning of Ministers -The Legislative and Regulatory Reform Act 2006
What is the Limitations of the Parent Act? It's the initial way Parliament controls DL
What is the Removal of the Parent Act? Parliament may amend or abolish the Parent Act
What is the Amendment/Repeal? Parliament may repeal/amend the piece of DL
What is the Scrutiny Committee? They check bills for any inappropriate/wrong provisions, any such provisions are brought to the attention of the House of Lords before the bill goes the Committee Stage
What is the Affirmative Resolution? Before SI, it must be approved by both houses before it can become a law. No time limit but says should be between 15-28 days e.g. required before new or revised police codes of practice under the PACE (police and criminal evidence) Act 1984
What is the Negative Resolution? SI will automatically become a law unless rejected by Parliament within 40 days
What is the Joint Select Committee? Reviews all SI but has no power to amend it, if something is wrong it can only refer to Parliament
What are the reasons for referral for the Joint Select Committee? -If it involves tax -If the law is retrospective (based in the past) -Unclear -It goes beyond the powers of Parent Act
What is the Questioning of Ministers? Ministers responsible can be questioned by Parliament on the work of their departments so they can be held accountable, this can be during Question Time
What is The Legislative and Regulatory Reform Act 2006? This Act sets procedure for the making of SI which are aimed at repealing an existing law in order to remove a 'burden'
What are the procedures under The Legislative and Regulatory Reform Act 2006 that it must follow? -Negative Resolution Procedure -Affirmative Resolution Procedure -Super-Affirmative Resolution Procedure; a higher level order as introduced by senior MP/Politicians
Which of the Parliamentary controls apply to SI only? -Affirmative Resolution -Negative Resolution -Joint Select Committee -The Legislative and Regulatory Reform Act 2006
What are the 4 types of Judicial Controls? -Judicial Review -Procedural Ultra Vires -Substantive Ultra Vires -Unreasonableness
What is Judicial Review? A process used by the High Court to ensure that the DL has been made lawfully
What is the Procedural Ultra Vires? Where the person making DL has not followed the procedure set out in the Parent Act
Explain the example of the Procedural Ultra Vires? Aylesbury Mushroom Case 1972 -Held Procedural UV as Minister did not consult with farmers as required by the Parent Act
What is the Substantive Ultra Vires? Where the person making the DL has exceeded the powers given to them by Parent Act
Explain the example of the Substantive Ultra Vires? AG v Fulham Corporation (1921) -Held Substantive UV as they employed people to wash clothes
What is unreasonableness? It contains unreasonable regulations
Explain the example of unreasonableness? R v Swindon NHS Trust (2006) -Breast cancer patient was refused medication as her case was not ‘exceptional’ -considered unreasonable. Strickland v Hayes BC (1896) -A By-law would prohibit obscene songs/language in any place, including in private. Held
When else can a DL be declared void? -Where it imposes taxes -Where it allows for sub-delegation -Conflicts with European legislation
What are the advantages of DL? -Save Parliamentary time -Technical expertise and expert knowledge -Consultation -Quick law making -Democratic
Why is having saving parliamentary time an advantage of DL? Parliament does not have time to deal with all the detailed laws, by using DL Parliament can focus on more important issues that require their attention
Why is having technical expertise and local knowledge an advantage for DL? People with specialist/local knowledge are involved in the preparation of DL. Parliament does not necessarily posses specialist/local knowledge
Why is having consultation an advantage for DL? Ministers can have the benefit of consultation with other bodies before the regulations are drawn up, it's important for regulations on technical matters
Why is quick law making an advantage for DL? DL can be passed quickly e.g. emergencies. Parliamentary procedure would take too long then be inappropriate and ineffective in emergency situations and it's flexible as allows Parliament to amend/revoke a piece of DL easier than an Act of Parliament
Why is DL being democratic an advantage? To an extent, it's democratic because gov. ministers, who are responsible for issuing statutory instruments and who also approve by-laws are elected
What are the disadvantages of DL? -Undemocratic -Risk of sub-delegation -Large volume and lack of publicity -Difficult wording -Contradicts Separation of Powers
Why is DL being undemocratic a disadvantage? The Queen and Privy Council are not elected yet approve OIC and SI's are drafted by civil servants and often only rubber-stamped by the appropriate Minister
Why is the risk of sub-delegation a disadvantage? SI’s are supposed to be made by Government Ministers, but in reality they often merely rubber-stamp laws actually made by their civil servants
Why is the large volume and lack of publicity a disadvantage of DL? DL are not publicised, meaning that an enormous volume of law is passed without the public being aware of it. Much remains unpublicised even after coming into force.
Why is difficult wording a disadvantage of DL? Obscure (unclear) wording can be difficult to understand. This then makes it difficult for the laws to be interpreted.
Why is contradicts separation of powers a disadvantage? No-one should be a member of more than one of the three branches of power, and the three branches should operate separately from each other. -The Executive -The Legislature -The Judiciary
Created by: jxkxx