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DL
Law Unit 1
| Question | Answer |
|---|---|
| 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 |
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