Law Delegated Legislation Flashcards

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  • Created by: Freyja8
  • Created on: 12-01-15 09:19
Where does the process of Judicial Review take place?
In a special administrative court within the Queen's Bench Divisional Court.
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What doctrine is Judicial Review based on?
The doctrine of 'ultra vires' which means "beyond their powers".
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What does the process of Judicial Review allow parties to do?
It allows parties to challenege the lawfulness of administrative decision-making.
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What is 'Procedural Ultra Vires'?
This is where an administrative person/body has failed to follow a procedure required under the legislation as the case 'Agricultural Training Board v Aylesbury Mushrooms (1972).
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What is 'Substantive Ultra Vires'?
This is where an administrative person/body has used powers legitimately given to them for a particular reason for another unauthorised reason.
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What case can be used as an example when explaining 'Substantive Ultra Vires'?
The case 'R v Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants (1996).
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What is 'Unreasonableness' in terms of Delegated Legislation?
This is where an administrative person/body has done something that no reasonable person/body in the same situation would do as in the case 'Associated Picture Houses v Wednesday Corporation (1948).
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What is 'Scrutiny by the Public'?
Issues with the legislation only arise once people have been affected and have gone to court to challenge the law.
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What case can be used as an example when explaining 'Scrutiny by the Public'?
The case ' Gillick v West Norfolk and Wisbech Area Health Authority (1985). Father challenged SI which gave permission for doctor to offer contraceptives to his daughter without his knowledge.
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What are some useful facts of the National Assembly for Wales in terms of Delegated Legislation?
It was set up in 1998. The assembly has control of some policy areas (Agriculture and Education). It can only pass Delegated Legislation. The Scottish assembly can pass primary legislation.
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What are some useful facts of the Assembly for London in terms of Delegated Legislation?
The assembly was set up in 1999. It has powers over the economy, transport and the environment (but no tax raising authority).
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What is Judicial Review?
This process is an essential requirement of Montesquieu's "separation of powers" theory, as it allows the judiciary to ensure that the executive is not doing more than it is legally permitted.
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What is the role of the Judge in Judicial Review?
Judges focus on whether that decision/exercise of power was carried out in the correct legal way. As a result they use different remedies from those in "ordinary" hearings, known as the prerogative orders.
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What are the Prerogative Orders?
Mandatory Orders (sometimes called 'Mandamus') - which require a body to do something. Prohibiting Orders - which require a body not to do something. Quashing Orders (sometimes called 'certiorari') - which "undo" something that has already been done.
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What needs to happen for a Judicial Review to succeed?
It must be proved that the body or person against whom the action is being brought has acted 'ultra vires' i.e. beyond the powers granted by Parliament. There are two forms of 'Ultra Vires'.
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What are the two forms of 'Ultra Vires'?
Procedural Ultra vires and Substantive Ultra Vires.
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What does the process of Judicial Review ensure the public does?
It ensures that public bodies act both within the law and the powers given to them. A judge will determine whether a decision has been reached in the correct, legal way, rather than having to regard to whether the decision itself is fair.
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What is Delegated Legislation?
Delegated Legislation are laws made by subordinate (below) Parliament. It is sometimes referred to as 'secondary legislation' or 'subordinate legislation'. Parliament gives body the authority to make laws through primary legislation.
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What are the 3 different Types of Delegated Legislation?
Statutory Instruments. Bylaws. Orders in Council.
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What are 'Statutory Instruments'?
Acts of Parliament often give government ministers or other authorities the power to regulate administrative details. E.g. Police Codes of Practice. NHS Guidelines.
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What are 'Bylaws'?
Made by local authorities, public and nationalised bodies e.g. British Railway Board.
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What are 'Orders In Council'?
Made by government often in times of emergency through the Privy Council.
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What is 'Ejusdem Generis'?
General words which follow specific ones are taken to include only things of the same kind. E.g. "Dogs, cats and other animals" this would include domestic animals but not wild ones. Due to the fact that the two first animals mentioned are domestic.
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What is an example of a case for 'Ejusdem Generis'?
Powell v Kempton Park Racecourse (1899). Keeping an office, room or other place for betting. Operating bets outside; words implied betting not allowed inside.
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What is 'Noscitus a Sociis' (A sociis rule)?
A word draws its meaning from those around it. E.g. "cats baskets, toy mice and food" it would be reasonable to assume food meant cat food. Dog food was not covered by the relevant position.
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What does the word 'Fictitious' mean?
It means something is made up/not true.
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What are the advantages of Delegated Legislation?
Relieves pressure on Parliamentary time (the commons can concentrate on important laws instead of technicalities). Technicalities/Expertise (Ministers will have expert knowledge in their department). Local Knowledge (Law made by local council).
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What are the criticisms of Delegated Legislation?
Sub-Delegation (Much law made by civil servants, merely rubber-stamped by ministers). Made largely in private (Lack of publicity). Like statute delegated legislation can suffer from bad wording. Rarely possible to prevent DL from being passed.
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What are the Intrinsic/Internal Aids?
The titles or subtitles. Preamble. Schedules. Explanatory notes (since 1999). Marginal notes (Placed after debate in parliament by the publisher. Not considered a good authority).
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What are the Extrinsic/External Aids?
Dictionaries and Textbooks of the time. Previous Acts on the same subject. Reports (e.g. Law Commission, Royal Commission).
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What does 'Hansard' mean?
This is the official daily report of parliamentary debates. For over 100 years of judiciary held that such documents could not be consulted on.
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What does 'Ambiguous' mean?
Questionable or Unclear.
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What are the 4 Approaches?
The Literal Rule, The Mischief Rule, The Golden Rule and The Purposive Rule.
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What is The Mischief Rule?
If something is happening in public and it is bothering people. It is not as wide as the purposive approach as it is limited to looking back at the gap in the old. It cannot be used for a more general consideration of the purpose of the law.
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What is The Purposive Rule?
It takes a broader approach than the mischief rule. The court is not just looking to see what the gap was in the old law. The judges are deciding what they believe the parliament is trying to achieve (what is the purpose of this act?)
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What is the Golden Rule?
The golden rule of statutory interpretation may be applied where an application of the literal rule would lead to an absurdity. The courts may then apply a second meaning.
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What is the Literal Rule?
This should be the first rule applied by judges. Under the literal rule, the words of a statute are given their natural or ordinary meaning and applied without the judge seeking to put a gloss on the words or make sense of the statute.
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What are the advantages of the Mischief Rule?
Promotes the purpose of the law as it allows judges to look back at the gap in the law which the Act was designed to cover. The emphasis is on making sure that the gap on the law is filled. This is more likely to produce a "just result".
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What are the disadvantages of the Mischief Rule?
There is the risk of judicial law-making. Judges are trying to fill gaps in the law with their own views on how the law should remedy the gap. Use of the mischief rule may lead to uncertainty in the law.
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What are the advantages of the Purposive Approach/Rule?
Leads to justice in individual cases. Broad approach which allows the law to cover more situations than applying words literally, this means it can fill in the gaps in the law.
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What are the disadvantages of the Purposive Approach?
Using the purposive approach makes the law less certain. It also allows unelected judges to 'make' law as they are deciding what they think the law should be, rather than using the words that parliament enacted.
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What are the advantages of the Literal Rule?
Using the literal rule to interpret Acts of Parliament means that unelected judges do not make law. Using the literal rule should make the law more certain, as it should be interpreted exactly as it is written.
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What are the disadvantages of the Literal Rule?
Lose Money. Have personal details invaded. Danger to the public. Words have more than one meaning, so that Act is unclear.
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What are cases that can be used as examples when explaining the Literal Rule?
Whitely V Chapell (1868) - Impersonate person entitled to vote. London and North Eastern Railway Co v Berrimen (1946) - Relaying and Repairing. Fisher v Bell (1961) - Flick Knife.
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Other cards in this set

Card 2

Front

What doctrine is Judicial Review based on?

Back

The doctrine of 'ultra vires' which means "beyond their powers".

Card 3

Front

What does the process of Judicial Review allow parties to do?

Back

Preview of the front of card 3

Card 4

Front

What is 'Procedural Ultra Vires'?

Back

Preview of the front of card 4

Card 5

Front

What is 'Substantive Ultra Vires'?

Back

Preview of the front of card 5
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