Delegated Legislation

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6 Reasons why we need delegated legislation (DL)
Saves time, deals with complex issues, quick to ammend, allows a fast legisaltive response, allows for local needs and concerns to be met, allows for the updating of primary legislation
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What are the 3 main types of DL
Statutory instruments, Bylaws, Orders in Council
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Explain statutory instrumets (SI's)
MADE BY: Government Ministers and their departments EFFECT: National EXAMPLE: Road Regulations Act 2001
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Explain Bylaws
MADE BY: Local authorities EFFECT: Local or public corporations POWER COMES FROM: Local Government Act 1972 EXAMPLE: London Underground smoking ban
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Explain Orders in Council
MADE BY : Queen and Privy council EFFECT: National or local in effect or specific to the activity aimed at POWER: Comes from Emergency Powers Act 1920 and the Civil Contingencies Act 2004 e.g. Fuel crisis 2000
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Advantages of DL
Saves time, Policy not detail (allows DL to focus on detailed law-making whilst parliament focus on broader policy), Fast(quick response to emergencies e.g. terrorism), expertise (parliament lack expertise in areas), Controls (avoids abuse of power)
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Disadvantages of DL
DL not debated in parliament-chance for public objection is lost, DL can be left to junior ministers, 3,000 DL a year-mistakes undermines proper scrutiny, DL not publisised as widely as primary legislation, DL undemocratic as made by unelected people
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What 2 types of control is there over DL?
Parliamentary and Court
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Name the 3 main controls by Parliament over DL
The Enabling Act, Resolution procedures and Scrutiny Committees
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How is the enabling act used as a control measure?
Parliament may repeal or ammend DL any time. The Act may lay down strict requirement, limitations and procedures. Consultation is often required with gov ministers, experts, interested parties or public
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Publication of all SI's is required under what?
The Statutory Instruments Act 1946
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State the 3 resolution procedures
Negative resolution, affirmative resolution and super-affirmative resolution
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Explain 'Negative resolution'
Involves the instrument being laid before parliament, usually for 40 days. At the end of the 40 days the instrument will become law unless parliament has objected to it in the meantime.
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Explain 'affirmative resolution'
Where Parliament is required to vote its approval of the DL on a given date during the time it is laid before parliament.
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Explain 'Super-affirmative resolution'
Exists to create more control over DL called Legislative Reform Orders made under the Legislative and Regulatory Reform Act 2006 which gives ministers wide powers- Requires ministers to have regard to:recommendations, resolutions and representations
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In one brief sentence what does a scrutiny comittee do?
Parliament has a number of committees that scrutinise DL.
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Explain what hapened in 1973 concerning scrutiny committees
1973: Joint select Committee on Statutory instruments has power to draw attention to both houses to an instrument under grounds it operates to ensure e.g it doesn't have retrospective effect.
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Explain what hapened in 1992 concerning scrutiny committees
1992: House of Lords Delegated Powers Scrutiny Committee was established to 'keep under constant review the extent to which legislative powers are delegated by Parliament to government ministers'.
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Explain what hapened in 2003 concerning scrutiny committees
House of Lords Secondary Legislation Scrutiny Committee (formerly Merits Committee)set up to consider the policy merits of any SI's or regulations that are subject to parliamentary procedure
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Explain briefly the Courts control over DL
Court control DL through judicial review which is based on ultra vires meanig 'beyond their powers'. The process allows teh courts to determine whether a decision-maker has gone beyond their powers in 3 categories.
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State the 3 ways a decision-maker can go beyond their powers
Procedural ultra vires, subsantive ultra vires and substantive ultra vires for unreasonableness
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What is procedural ultra vires? Give a case
Where the body/individual failed to follow some procedure/requirement laid down in legisaltion. CASE: Agricultural Training Board V Aylesbury Mushrooms(1972). Minister set up a training board without consulting Mushroom Growers association
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What is Substantive ultra vires? Give a case
Individual has used authorised powers in an unauthorised way CASE: R V Secretary of State for Education and Employment(2000).SI about access to higher pay for teachers was beyond the powers given to the Minister of Education under Education Act 1996
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What is Substantive ultra vires for unreaonsableness? Give a case
Individual makes a decision which no reasonable individual would do in the same situation. CASE: Associated Picture Houses V Wednesbury Corporation (1948)Local authority restricted cinema's sunday opening that no children under 15 would be permitted.
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How has inconsistency with the Human Rights Act 1998 added another area of review for the courts?
Where the individual making the decision has made a decision which breaches an individuals human rights CASE:R(Bono) V Harlow(2002).D's denied right to fair trail(Atricle 6 HRA) when committee who herad appeal for housing benefit was found impartial
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Explain 1 reason why parliametry controls are effective
Parliament retains greatets control over DL which is the power to revoke, repeal or amend the Enabling Act which fits with the dcotorine of Parliamentary supremacy which states that parliament is the ultimate law-making body.
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Explain 1 reason why parliametry controls are ineffective
There is a high volume of instruments to consider. And the resolution procedures are weak and rarely used. The scruitiny committee lack the power to ammend or reject legislation and are only able to report their findings where and when allowed.
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Explain 1 reason why Court controls are effective
Governemnt accepts courts findings even whenthey dislike it due to the adherence to the rule of law. Situation has increased notably since the enactment of teh HRA which has empowered courts in this area.
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Explain 2 reasons why court controls are ineffective
Judicial review can only happen if somone brings a case. Legal aid is rare and taking cases to High court can prove expensive and takes financial capacity to pursue a case. Courts are reluctant to stand up to gov due to beleif in seperation of powers
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Other cards in this set

Card 2

Front

What are the 3 main types of DL

Back

Statutory instruments, Bylaws, Orders in Council

Card 3

Front

Explain statutory instrumets (SI's)

Back

Preview of the front of card 3

Card 4

Front

Explain Bylaws

Back

Preview of the front of card 4

Card 5

Front

Explain Orders in Council

Back

Preview of the front of card 5
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