Delegated Legislation

Question 1

What are the reasons/advantages for/of delegated legislation? (5)

Answer 1

• Saving Parliament time
• Dealing with complex and technical issues (e.g health and safety regulations)
• Quicker and easier to amend and update than primary legislation
• Able to respond quickly to emergencies
• Allows for local variation to meet local need

Question 2

Why do we use delegated legislation? (4)

Answer 2

• Parliament doesn’t have the TIME to debate every detail of every Act
• Parliament will not always have the relevant EXPERTISE to deal with a particular issue
• Delegated legislation is EASIER TO CHANGE, which allows a quicker response to changing circumstances
• Parliament CAN’T ALWAYS RESPOND enough in emergencies

Question 3

What are the disadvantages of delegated legislation? (4)

Answer 3

• Undemocratic: giving power to unelected individuals takes the decisions away from the democratic process
• Risk of sub-delegation. Legislation is sometimes made by people other than those who have been given the power to do so
• Lack of publicity. Although published, they tend to not be under the same public scrutiny as Acts
• Large volume. Keeping track can be difficult and delegated legislation outnumbers Acts of Parliament 5:1

Question 4

What does the Scrutiny Committee do? What does it review? Who does it refer to? What does it act as? Why? Who does it report to? At what stage?

Answer 4

• Reviews technical merit of all draft statutory instruments
• Refers to Parliament those giving cause for concern (e.g unusual or unexpected use of the power)
• The Committee acts as a filter, so that Parliament only needs to consider the small number of instruments referred
• Reports its findings to the House of Lords before the Committee Stage of the Bill

Question 5

What happened in R v Secretary of State for Educational Employment ex parte National Union of Teachers (2000)? (2)

Answer 5

• A high court judge ruled that a statutory instrument setting conditions for appraisal and access to higher rates of pay for teachers was beyond the powers given under the Education Act 1996
• In addition, the procedure used was unfair, as only four days had been allowed for consultation

Question 6

What happened in R v Home Secretary ex parte Fire Brigade’s Union (1995)?

Answer 6

• Changes made by the Home Secretary to the Criminal Injuries Compensation Scheme were held to have gone beyond the power given to him in the Criminal Justice Act and so were ultra vires

Question 7

What is delegated legislation? Where does it come from? (3)

Answer 7

• Delegated legislation is a law made by someone other than Parliament, but with the authority of Parliament
• This is given to them by a “Parent Act” (also called an Enabling Act), which creates the framework for the law
• It stems from the Local Government Act 1972

Question 8

The Joint Select Committee on Statutory Instruments can flag up a problem when delegated legislation does what? (5)

Answer 8

When the delegated legislation:

• Tries to impose a tax
• Has an unintended effect
• Is ultra vires
• Makes unintended use of powers to make the delegated legislation
• Is badly drafted

Question 9

What are by-laws? Who are they introduced by? When are they used? Passed under what Act? Example? (4)

Answer 9

• Introduced by local authorities, or large bodies authorised to do so (such as the Rail Authority)
• Only involve matters of local concern
• Generally passed under the Local Government Act (1972)
• An example could be the ban on smoking on the London Underground

Question 10

What does the Joint Select Committee on Statutory Instruments do?

Answer 10

• Evaluates all delegated legislation on a technical level

Question 11

Describe the two types of ultra vires and give an example case for each

Answer 11

• Substantive ultra vires - when the subject matter is outside the scope of power (A-G Fulham Corp [1921])
• Procedural ultra vires - subject matter intra vires, but serious failure to comply with a mandatory procedural requirement - e.g failure to consult (Agricultural Training Board v Aylesbury Mushrooms [1972])

Question 12

What are Orders in Council? What are they introduced under? When are they used? (2)

Answer 12

• Introduced by the Queen or Privy Council in times of emergency under the Emergency Powers Act 1920
• Only used in times of emergency when Parliament is not sitting

Question 13

Give an example of an Enabling Act. What did it do?

Answer 13

• The Disability Discrimination Act 1995 which gave the secretary of state powers to make regulations

Question 14

Why must delegated legislation be subject to effective checks and controls? (2)

Answer 14

• To ensure accountability and prevent misuse
• Delegated legislation results from transferring law-making powers from the legislature to the executive so checks and controls are important

Question 15

What happened in the Aylesbury Mushroom Case (1972) (2)

Answer 15

• The Minister of Labour had to consult any organisation representative of substantial numbers of employers engaging in the activity concerned
• His failure to consult the Mushroom Growers’ Association (which represented about 88% of all mushroom growers) meant that his order establishing a training board was procedural ultra vires

Question 16

What happened in Strickland v Hayes Borough Council (1896)?

Answer 16

• A by-law prohibiting the singing or reciting of any obscene song or ballad and the use of obscene language generally was held to be unreasonable and so was ultra vires

Question 17

When can Statutory Instruments be declared void?

Answer 17

• When they conflict with E.U legislation

Question 18

What are Statutory Instruments?

Answer 18

• Rules, regulations and orders, issued by ministers and national in effect

Question 19

When can the courts annul delegated legislation?

Answer 19

• When it is ultra vires

Question 20

How is it decided if a Statutory Instrument has to be enacted through negative or affirmative resolution?

Answer 20

• The relevant Parent Act will specify whether negative or affirmative resolution is needed to take place before a Statutory Instrument becomes law

Question 21

How can Statutory Instruments be introduced?

Answer 21

• Through either negative or affirmative resolution

Question 22

Explain negative resolution (2)

Answer 22

• More common
• There is no debate on the issue and the Statutory Instrument will become law unless it is rejected by Parliament within 40 days

Question 23

Explain affirmative resolution (2)

Answer 23

• Less common

- Offers more control as the Statutory Instrument is debated and needs Parliament’s approval before being enacted

Question 24

What is the purpose of The Legislative and Regulatory Reform Act 2006? What does a burden refer to? (4)

Answer 24

• Under this Act, Parliament can make a Statutory Instrument to repeal a law if the Act imposes a burden
• A burden refers to:
  
  • A financial cost
  • An administrative inconvenience
  • An obstacle to efficiency, productivity or profitability
  • A sanction (e.g criminal) which affects lawful activity

Question 25

What must any minister making a Statutory Instrument under The Legislative and Regulatory Reform Act 2006 do?

Answer 25

- Consult multiple people