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Summary A* LAW SUMMARISED NOTES PAPER 2
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Law Paper 2 – Revision////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////////
DELEGATED LEGISLATION
Parliament's authority to make delegated legislation is usually laid down in a ‘parent’ act of
parliament known as an enabling act. The enabling act creates the framework of the law and the
delegates power to others to make more detailed law in the area
o Orders in Council
o Statutory Instruments
o By-laws
⇒ Orders in council
The queen and the privy council have the authority to make orders in council. The privy council is
made up of the prime minister and other leading members of the government. So this type of
delegated legislation effectively allows the government to make laws without going through
parliament
Orders in councils can be made on a wide of range of matters
o Bringing AoP into force
o Giving legal effect to EU Directives
o Dealing with some aspects of foreign affairs
Orders in council can be used to amend or update existing laws. For example, in 2003, an order in
Council was used to alter the misuse of drugs act.
There must be an enabling act allowing the privy council to make orders in council on particular
topics.
⇒ Statutory instruments
Minister and government departments are given authority to make regulations for areas under their
particular responsibility. About 15 departments in government. Each dealing with a different area of
policy and can make rules. For example, the minister of transport will be able to deal with necessary
road traffic regulations.
They can be very short covering one point such as making the annual change to minimum wage. But
they can be long and detailed which were too complex to be included in an AoP. Like the Building
Regulations 2010.
⇒ By-laws
Can be made by local authorities to cover matters within their own area [district/town]. Many local
by-laws will involve traffic control such as parking restrictions or for other matters such as banning of
drinking alcohol in public places.
By-laws can also be made by public corporations and certain companies for matters within their
jurisdiction, which involve the public. Bodies such as British Airport authority can enforce rules about
public behaviour on their premises.
CONTROL OF DELEGATED LEGISLATION
Since there are many people with power to make delegated legislation it is important that there should
be some control over it. Often exercised by parliament or courts
,⇒ Checks on the enabling act
Parliament has the initial control over what powers are delegated as the enabling act sets out limits
within which any delegated legislation must be made. For example, the act can set out whether the
government department must consult other people before making the regulations.
Parliament also retains control over delegated legislation as it can repeal the powers in the enabling
act at any time = the legislation will cease
⇒ Affirmative resolutions
A small number of statutory instruments will be subject to an affirmative resolution. Meaning that the
statutory instrument will not become law unless specifically approved by parliament. For example, an
affirmative resolution is required before new or revised police codes of practise under the police and
criminal evidence act 1984 can come into force.
A disadvantage of this is that parliament cannot amend the statutory instruments it can only approved
annulled or withdrawn.
⇒ Negative resolutions
Most statutory instruments will be subject to a negative resolution which means that the relevant
statutory instruments will become law unless rejected by parliament within 40 days. Problem is that as
there are many statutory instruments made very few instruments will be looked at.
CONTROL BY THE COURTS
Delegated legislation can be challenged by the court by a person with sufficient standing or interest in
the case. It can be challenged by judicial review on the ground that it is ultra vires. Meaning that it
goes beyond the powers given by parliament in the enabling act
⇒ It is ultra vires if it is unreasonable
R [Rogers] v Swindon NHS Trust 2005
⇒ It is ultra vires because the correct procedures have not been followed
Aylesbury Mushroom case 1972
REASONS FOR THE USE OF DELEGATED LEGISLATION
o Expert knowledge = much legislation needs expert knowledge of the subject matter in order
to draw up the most effective laws. As it is impossible for parliament to have all the
knowledge needed to draw up laws for such things as controlling the use of technology or
operating complex taxation schemes.
o Local knowledge = local councils know their own areas and can decide which areas need
drinking bans or what local parking regulations there should be. It would be impossible for
parliament to deal with all local requirements for every city town.
, STATUTORY INTERPRETATION
Interpreting statutes in order to find Parliament’s intention to ensure the law remains accurate. Many
statutes are passed each year and the meaning of these laws should be clear and explicit, but this is not
always the case. Cheeseman v DPP case- policeman witnessed a man masturbating in a public
lavatory
In this case the meaning of the word ‘street’ was important, the court used the section 81 of the Public
Health Amendment Act 1902. Meaning of ‘passenger’ was also important, the court used the 1847
Oxford English Dictionary to discover what this meant. ‘passenger’ meant ‘a passer-by or through; a
traveller (on foot) ; a wayfarer’
- D not found guilty because of the way the court interpreted ‘passenger’
PROBLEMS: interpretations f the statutes can be misleading and if not explained properly can lead to
unfair outcomes/injustices.
Reasons for Statutory Interpretations
A BROAD TERM
o There may be words designed to cover several possibilities. For example, in the Dangerous
Dogs Act 1991 there is a phrase ‘any dog of the type known as the pit bull terrier’ this seems
a phrase but led to problems. What is meant by type? Does it mean the same as breed?
o Brock v DPP 1993 this was the key point in dispute and the Queen’s Bench Divisional Court
decided that ‘type’ had a wider meaning than ‘breed’. It could cover dogs which were not
pedigree pit bull terriers but had a substantial number of the characteristics of such dog.
NEW DEVELOPMENTS
o Modern technology may mean that an old act of parliament does not apparently cover present
day situations. This is seen in the case of Royal College of Nursing v DHSS (1981) where
medical science and methods had changed since the passing of the Abortion Act in 1967.
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