Delegated Legislation

New Law Specification 2016

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What is delegated legislation?
Where parliament passes power to make law down to someone else
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How does Parliament pass this power?
By creating an Enabling Act for certain people to make delegated legislation
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What are the three types of delegated legislation?
Order in council, By-laws and Statutory Instruments
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Who makes Orders in Council?
Made by the Privy Council who are appointed by the Queen
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What can Order in Council be used for?
To dissolve Parliament, to bring an Act of Parliament into force (Commencement Order), to comply with EU directives, in emergency situation, transferring powers between government departments and dealing with foreign affairs
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Give an example of an order used in an emergency situation.
The Terrorism (United Nations Measure Order) 2001
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Give an example of an order used in transferring responsibilities between government departments.
Scotland Act 1998 Transfer of Function to the Scottish Minister Order 1999
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Give an example of an order used in dealing with foreign affairs
Afghanistan (United Nation Sanction Order 2001)
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Who creates Statutory Instruments?
A government Minister in their particular area of expertise
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What can Statutory Instruments be used for?
To bring an Act of Parliament into force (Commencement Order), when law is required to comply with EU law and is the most popular form of delegated legislation
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Give an example of a commencement order.
Town and Country Planning Act 1971
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Give an example of statutory instrument being used for complying with EU law.
Unfair Terms in Consumer Contracts Regulations
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Who are by laws made by?
Local authorities and public companies and approved by a relevant government minister
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Who can local authorities affect?
County council can affect a county, district councils can affect a district
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Give an example of local authorities using by laws
To prevent dog fouling in neighbourhoods
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Why do public companies create by laws?
To monitor and control behaviour
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Give an example where public companies have used by laws.
Boddingtons v BTP which prohibited smoking on train carriages
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What are the advantages of delegated legislation?
Time saving, have specialist knowledge, controlled by parliament and the courts and is democratic
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What are the disadvantages of delegated legislation?
Undemocratic, lack of publicity, lack of scrutiny, no effective controls, contradicts the separation of powers theory
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Why do we need to control delegated legislation?
As it can be made by unelected people, there is significantly more made each year than Acts and it is not subjected to vigorous scrutiny
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What are the two controls on delegated legislation?
Parliamentary controls and Judicial controls
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How is the Enabling Act a Parliamentary control?
Limits who can create the law, defines the extent of the powers given and defines the process that must be completed
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How is the Scrutiny Committee a Parliamentary control?
It can refer SI back to parliament if they have acted beyond their powers, imposed a tax or charge, not used the correct procedure, is defective or needs clarification
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What are the issues with the Scrutiny Committee?
Cannot amend SI's, cannot review all SI's and many of their recommendations are ignored
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How is affirmative resolution a Parliamentary control?
Delegated legislation must be approved by both houses in a set time
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What are the problems with affirmative resolution?
It is time consuming, cannot be amended by Parliament and is often a formality
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How is negative resolution a Parliamentary control?
The SI is placed before Parliament for 40 day so they can vote on the legislation
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What is a problem with negative resolution?
Most MP's don't look at the SI's
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How is being published a Parliamentary control?
Means all SI must be published by the HM Stationery Office
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How is questions a Parliamentary control?
Allows them to ask the appropriate government minister about the SI's
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How is removal of Enabling Act a Parliamentary control?
It is the ultimate safeguard meaning Parliament can remove all given powers
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What is the name for the hearing of delegated legislation in courts?
Judicial Review Case where they can decide a case is ultra vires
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What is ultra vires?
When the court considers a piece of delegated legislation has been created BEYOND THE POWERS of the Enabling Act
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What is procedural ultra vires? Give a case example.
Delegated legislation that has not used the correct procedure e.g. Aylesbury Mushroom Case that failed to consult the Mushroom Grower Association
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What is substantive ultra vires? Give a case example.
Concerns the content of the legislation e.g. AG Fulham Corporation that charge a fee for free washhouses
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What is unreasonableness? Give a case example.
Unjust, made in bad faith or so perverse no reasonable person would have made it e.g. Wednesbury Corporation banned U16s going to the cinema on a Sunday
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What are the advantages of judicial controls?
Has been successful in many cases
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What are the disadvantages of judicial controls?
Legislation may have been in force for many years and where powers are wide it is difficult to establish ultra vires
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Other cards in this set

Card 2

Front

How does Parliament pass this power?

Back

By creating an Enabling Act for certain people to make delegated legislation

Card 3

Front

What are the three types of delegated legislation?

Back

Preview of the front of card 3

Card 4

Front

Who makes Orders in Council?

Back

Preview of the front of card 4

Card 5

Front

What can Order in Council be used for?

Back

Preview of the front of card 5
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