Chapter Two - Lists

Question

Chapter 2: (D) MISCELLANEOUS

Answer

(18) The argument could be made that delegated legislation is fundamentally undemocratic. Provide, and briefly discuss, three disadvantages associated with delegated legislation. (6)

· Delegated legislation gives law-making power to the executive (and away from the more democratically accountable legislature). This undermines two constitutional theories: parliamentary sovereignty (since Parliament is no longer, by volume of law created, the supreme law-making body, though it does retain ultimate authority over delegated legislation through the enabling powers given and in its power to repeal or revoke legislation); and the separation of powers, by giving too much power to the executive at the expense of the legislature.
· Delegated legislation is often inadequately publicised, to the detriment of the citizen who should have a reasonable expectation of knowing about the laws that govern him/her (this can be linked to the constitutional theory known as the ‘rule of law’).
· Delegated legislation is subject to ineffective control mechanisms. For example, it is not necessary to have all pieces of delegated legislation laid before Parliament; and even where this is the requirement, the ‘negative resolution’ and ‘affirmative resolution’ procedures do not provide a challenge to many pieces of delegated legislation. A central concern about delegated legislation is that there is simply too much law being made to be adequately controlled. (See also AS Level Law at p 34.)

(19) Describe the facts of the Aylesbury Mushroom case. What does this case illustrate about delegated legislation and its exercise by authorities? (4)

The Aylesbury Mushroom case arose in the context of a Minister exercising delegated power to establish a Training Board for land-workers. The Minister failed to follow the enabling powers appropriately and therefore failed to consult with the Mushroom Growers’ Association. The Association successfully challenged the Minister as to the validity of the Board insofar as it applied to them. This is an example of the exercise of delegated powers being challenged in the courts on the procedural ultra vires ground. In creating delegated legislation, a Minister must follow the prescribed criteria in the Enabling Act. In this case, the Training Board was held to be invalid in respect of the Mushroom Growers’ Association, but valid for all of those bodies that had been consulted appropriately.

(20) Identify the three main types of delegated legislation in the English legal system and explain who makes them. (6)

The three main types of delegated legislation in the English legal system are:

· Orders in Council These are made by the Government, through the Privy Council, a group of senior members of Parliament and public figures who act on behalf of the Queen. Orders are used particularly to deal with emergencies and to give effect to statutory provisions. Orders are issued in the form of statutory instruments.
· Regulations These are made by members of the executive (ie, Secretaries of State, senior Government Ministers) to supplement the broad principles of Acts with detailed, technical rules. Regulations are issued in the form of statutory instruments.
· Bylaws These are made by local authorities and other public bodies to ensure the good governance of local areas or maintain rules for specific services. For example, a Bylaw prohibiting smoking in railway carriages, and issued by the British Railways Board, was seen to be valid in the case of Boddington v British Transport Police (1998).

(21) Explain the significance of the Enabling Act as a parliamentary control on delegated legislation.(4)

Since the authority to delegate law-making power lies with Parliament, it is for Parliament to prescribe the range and effect of that power. Clearly, it can limit or qualify the powers being delegated in the Enabling Act. Moreover, the Act may lay down a requirement that any delegated legislation to be made be subject to the affirmative resolution procedure, so that it must be laid before, and approved by, both Houses of Parliament. A final point to note about Parliament exercising control over delegated legislation in this way is that any delegated power created can be repealed or varied by later legislation. (See AS Level Law at p 36.)