Law Unit 1

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  • Created by: Jess
  • Created on: 13-05-13 10:33
What is Delegated Legislation?
A Law made by a person or a body to whom Parliament has delegated law making power.
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Why might Parliament delegated law making power?
Some new laws require specialist knowledge so parliament delegate law making power to people and bodies better equipped to make these laws.
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What is the Parent (enabling) Act?
An original act passed by Parliament enabling another person to make law. This act is compulsory in order to delegate power and it contains framework of the new law.
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What are orders in Council?
Laws made by the Privy Council and the Queen. They are drafted by the Government.
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What is the Privy Council?
A body made up of senior, current and former politicians. The monarch used to run the country through the Privy Council and although its powers have diminished its functions to make orders in council have remained.
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In what circumstances are Orders In Council used?
Used when there is an emergency,To transfer responsibilities between Government departments, to dissolve Parliament before an election, bringing an act of Parliament into force and when dealing with foreign affairs.
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Give some examples of Orders In Council.
Afghanistan Order 2001 (makes it an offence to make funds available to the taliban), Terrorism Order 2001 (makes it an offence to provide funds to anyone involved in terrorism)
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What are Statutory Instruments?
Laws made by Government ministers within the area of their responsibility. Enforceable in courts. Drafted by the legal department of relevant Government department.
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In what circumstances are Statutory Instruments used?
To update law or an act of Parliament, to bring an act of Parliament into force (a commencement order) and to comply with directives from the EU.
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What is a Commencement Order?
Statutory instruments are made in the form of these. They are orders made by a Government minister specifying when part of an act must come into force.
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Give some examples Of Statutory Instruments.
Increasing the amount of a fine or the amount of the national minimum wage under the national minimum wage act 1998, Railways Act 2005 Commencement Orders, Sale and supply of Goods to customers regulations 2002.
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Who do Statutory Instruments apply to?
Some apply to the whole of the UK and some only apply to certain countries for example england and wales.
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What are By- Laws?
Laws made by local authorities and public corporations, they are enforceable in courts and can apply to a local authority area.
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Who is affected by By - Laws?
County Council can make by - laws affecting a whole country while a city, town or district may pass laws affecting that city, town or district.
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In what circumstances might By - Laws be used?
To make laws for the good government of local areas such as drinking alcohol in public places, to make laws regulating the behavior of the public on property belonging to a public body or company.
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What are some examples of By - Laws?
By - laws made under the dogs (fouling of land) act 1996 - (fine members of the pulblic who do not clear up dog mess), By laws made under the Railways act 1993 (restricting smoking on trains or stations)
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Name a case associated with By - Laws.
Baddington V British Transport Police: Defendant caught smoking on a train in breach of a by - law.
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How are parliament generally in control of Delegated Leglislation?
Parliament remains in control of what law is made and how it is made, they may repeal or amend pieces of legislation, limits are set out in the Parent Act. By - laws are confirmed by relevant Government ministers.
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What is the Scrutiny Committee?
Example of Parliamentary Control. Made up of MP's and have a role to review statutory instruments and to refer those requiring further consideration to both house of Parliament.
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Why might the Scrutiny Commitee refer a Statutory Instrument back to the Houses of Parliament?
Because it appears to have gone beyond or outside the powers given under parent/enabling act.
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How effective is the Scrutiny Committee?
It is one of the more effective controls are Statutory Instruments are subject to Scrutiny although Scrutiny Committees powers are limited & they have no powers to amend law.
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What is the Positive Resolution procedure?
A process in which a statutory instrument must be laid before Parliament. It must be approved by a vote in one of both Houses of Parliament without a specified time limit.
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What is an example of the Positive Resolution Procedure?
The Human Rights Act where section 1 authorizes the Secretary of State to make amendments to acts he thinks fit.
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How effective is the Positive Resolution Procedure?
It is more effective than some other controls as statutory instruments subject to this must always be debated however it is time consuming.
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What are Questions as a form of Parliamentary Control?
This means that the responsible Minister can be questioned by Parliament during debates giving publicity to the delegated legislation. However, politicians are skilled in putting forward their own view instead of directly answering questions.
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What is Removing Power as a form of Parliamentary Control?
Parliament may remove the power to legislate from the delegated person or body, can be done by amending Parent or Enabling Act.
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What is the Negative Resolution Procedure?
A process in which the Statutory Instrument is laid before Parliament for 40 days and becomes law unless either House decides to annul it.
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How effective is the Negative Resolution Procedure?
Arguably of limited effect as there is no requirement for MP's to look at the statutory instrument so most is not challenged and automatically becomes law. However, it gives an opportunity to members of House to raise objections.
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In summary what are the different types of Parliamentary Control?
Positive and Negative Resolution Procedures, Questions, Removing Power and the Scrutiny Committee.
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What is the Judicial Review Procedure?
A Procedure by which the high court may review the decision of a body to ensure rules of Justice have been followed.
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What are Procedural Ultra Vires?
Delegated Legislation can be declared as procedural ultra vires if it has not been made using procedures specified in the Parent Act.
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Give an example of Procedural Ultra Vires.
Aylesbury Mushroom Case - A letter informing Mushroom Growers Association of new law did not comply with requirement in Parent Act.
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What are Substantial Ultra Vires?
Delegated Legislation can be declared as Substantial Ultra Vires if it is beyond the limits set out in the parent act.
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Give an Example of Substantial Ultra Vires.
A-G V Fulham Corporation - Parent act gave corporation power to provide clothes washing facilities for public. Corporation set up laundry where council washed residents clothes. Ultra Vires as Parent Act did not give authority to wash others clothes.
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Give an Example of a Piece Of Delegated Legislation being declared unreasonable.
R V Swindon NHS Trust - Woman with cancer was prescribed drugs by her doctor, NHS refused to provide them as case was not exceptional but court of appeal said this was unreasonable.
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How effective is Judicial Controls?
Effectiveness is limited - courts depend on cases being brought before them. Judges do not have the ability to amend leglislation. However, judges are able to ensure it has been made in accordance with instructions set in Parent Act.
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What are some advantages of Delegated Legislation?
It is time saving, Produced by people with specialist knowledge, range of controls ensures Delegated Leglislation conforms to will of Parliament & It is democratic as Goverment ministers issuing laws are elected.
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What are Some disadvantages of Delegated Legislation?
It is partly undemocratic as it is not always debated by Parliament and Queen and Privy council approve laws but are not eelected. There is lack of pulicity, controls are limited in effect and there is a risk of sub - delegation.
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Other cards in this set

Card 2

Front

Why might Parliament delegated law making power?

Back

Some new laws require specialist knowledge so parliament delegate law making power to people and bodies better equipped to make these laws.

Card 3

Front

What is the Parent (enabling) Act?

Back

Preview of the front of card 3

Card 4

Front

What are orders in Council?

Back

Preview of the front of card 4

Card 5

Front

What is the Privy Council?

Back

Preview of the front of card 5
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