hey all, I timed myself whilst doing a past paper, plz feel free to comment or give advice on how to improve!
3a) Outline, with examples, what is meant by delegated legislation. Briefly explain how Parliament and the judiciary the judiciary exercise control over this law- making process. (20marks)
b) Discuss two disadvantages of delegated legislation as a source of law (10marks) no wonder I had to rush this question!
a) Delegated legislation is law made by other bodies other than Parliament, but with the authority of Parliament. This is laid down in an enabling Act which is also known as a Parent Act. There are three types of Delegated Legislation which are; Statutory Instruments, Orders in Council and Bylaws. Statutory Instruments are rules and regulations made by government ministers. There are 3,000 Statutory Instruments made every year, compared to only 100 Acts of Parliament. Some examples of Statutory Instruments include Codes of Practice such as the Police and Criminal Evidence Act 1984 and the Constitutional Reform Act 2005. Orders in Council are made by the Privy Council on behalf of the Queen in Emergency situations such as the Emergency Powers Act 1920 and the Civil Contingencies Act 2004. Bylaws are made by elected ministers who have the necessary local knowledge in local areas.
Parliament has control over Delegated Legislation by giving affirmative and negative resolutions. Affirmative resolutions is where the Statutory Instrument will become law unless specifically approved by Parliament. The disadvantage to this however, is that legislation can only be approved, annulled or withdrawn.
Negative resolution is where the Statutory Instrument will become law unless rejected by Parliament within 40 days of Parliament. Individual Ministers may also be questioned by MP’s in Parliament on the work of their departments and this can include questions about proposed regulations. A more effective joint is the “Joint Select Scrutiny Committee”, known as the Scrutiny Committee. This review is a technical one and “not” based on policy. The main grounds for referring a Statutory Instrument back to the Houses of Parliament are that it imposes a tax or charge, an elected body has such a right, it appears to have retrospective effect which wasn’t provided for by the enabling Act, it appears to have gone beyond the powers given under the enabling legislation or it makes some unusual or unexpected use of those powers or it is unclear or defective in some way.
The legislative and Regulatory Reform Act 2006, is where there is a financial cost, an administrative inconvenience, an obstacle to efficiency, productivity or profitability, sanction, criminal or otherwise, which affects the carrying on of any lawful activity.
Any Minister making a Statutory Instrument under the powers of this Act must consult various people and organisations which are representative of interests substantially affected by the proposals, the Welsh Assembly in relation to matters upon which the Assembly exercises functions and the Law Commission where appropriate. The special controls are; affirmative resolution procedure, negative resolution procedure and super affirmative resolution procedure ** I didn’t have time to explain this, whilst typing, I also realised that I wrote about control by the courts, as I misread the question!! I thought there was less time to write about Parliament AND courts!!
**can there be a question about both?
I think that the info below isn't relevant to this question, but can you guys still tell me whether it's good enough for control by the courts?
I misread judiciary as courts!
Courts can also exercise control, although delegated legislation is sometimes seen to be “ultra vires” and then considered void. Ultra vires is where the ministers have gone beyond their powers delegated to them in an enabling act. Judicial review can be made where two parties in a civil claim are taken. Law is also seen as void if it conflicts with European Union legislation. Many cases show what decisions are made by courts such as; “R v Secretary Hayes Borough Council”, where singing obscene songs was prohibited in private and public places. Another case was the “National Teachers Union” regarding appraisals and pay rights under the Education Act 1996. sub delegation is also done a lot and so is levy taxes. The “Aylesbury” Mushroom case was where it concerned workers in the activity concerned.
b) The two disadvantages of delegated legislation can be seen by obscure wording and that it’s made in private. Obscure wording can be seen from the “dangerous dogs Act 1991”, which concerned the two words; type and breed. In the Queen’s Bench divisional Court, “type” had a wider meaning than breed. Delegated legislation is made in private, in contrast to Acts of Parliament. The public can’t scrutinise delegated legislation, because they aren’t aware of it in the first place.
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Delegated legislation past paper, plz help!:) watch
- Thread Starter
- 11-01-2010 22:27