Includes writing frames for the case study 20 markers but not the evaluation questions and includes the disadvantages of purposive approach, delegated legislation and statutory interpretation
Delegated legislation-
Is a law made
Advantages by a person or alaw
of parliamentary body to which Disadvantages
parliament have delegated their law- law
of parliamentary
making powers.
making: making:
Effective consultation- Undemocratic process-
Before a bill is presented to parliament, there would There are three bodies involved in the process and
have been a consultation on the proposed changes only one is democratically elected, the House of
of the law (green papers). Commons the House of Lords and royal assent is not
This allows government to take into consideration done by an elected body. The house of lords has
objections and further suggestions on their original restrictive powers on the ability to delay a bill or
proposals. pass a bill from the House of Commons. As seen in
the Salisbury convention and parliament acts 1945
Democratic process- Government control over law making-
The MPs in the House of Commons are The government has a majority of MPs in the
democratically elected to make laws. During commons so it can vote out any private member bills
debates/PMQ’s has an opportunity to put forward that do not fit their political agenda. The majority of
their views of their constituents. MPs in the House governments time is dedicated to government bills
of Lords are not elected but the parliament act rather than private ones.in 09/10 only five private
1911/49 can mean the House of Commons can member bills were passed. Arguably gov have too
overrule them as it is the superior house. much power in the HOC but also have they are able
to overrule the Lords.
Effective drafting of laws- Badly drafted legislation-
Parliament can act on reports and draft bills Parliamentary drafters often use words and phrases
prepared by the law commission who will have that are ambiguous, unclear and leave a vague
consulted widely and investigated the state of meaning leaving Judges have not to interpret what
existing laws and the need to reform, resulting in a the true meaning is which is subjective.
well drafted law and no need to debate them. Seventy-five percent of cases heard in the Supreme
There is also a grater possibility of codification of Court are about the wording/ meaning of language
existing laws and practice, like introduced by the used.
sentencing act 2020
Emergency law making-
Where a law or act needs to be introduced as an
emergency the law can be debated and enacted
quickly. For example, the coronavirus act 2020, gave
the government power to manage the pandemic and
institute changes when needed. It was passed in 4
days.
Parliament passes an enabling act (primary legalisation – the
original act)
, Statutory instruments: Orders in council: By- laws:
They are regulations or orders The queen and the privy council Made by the local authorities
rather than acts, made by can pass laws called orders in under the Enabling act of the local
government ministers and their council. The privy council is made government act 1972. They must
departments, so the health up of the prime minister and other be confirmed by relevant
minister makes laws on health leading members like the cabinet government ministers and are
issues etc; the department will and allows government to make enforceable in the courts. They
consult with experts regarding legislation without debating in can make laws that affect their
their content of laws then are parliament. Generally used in geographical area, most include
drafted by the legal department. public emergencies. parking restrictions and drinking in
Examples: Examples: public spaces.
-The building regulations act -The misuse of drugs act 1971 Examples:
2010; amended several times order 2010; which made -Under the airports act 1986 the
under the authority of the mephedrone a class b drug due to British airports authority who
European union act 1972 and the a rise in recent deaths regulate all airports made rules
building act 1984 about liquids and sharp objects
being bought on planes or
carparking charges
Parliamentary controls Judicial controls
Approval of the parent act: Judicial review:
Parliament has the first control over what powers are Can be challenged by the high court through judicial
delegated as the enabling act sets out the limits, for review, defined by lord brown in ex parte Vijayatunga as
example. to exercise weather the power/action was lawful or not.
-Which gov minister can make regulations Do not deal with quality just with legal standing. Ultra vires
-The types of law to be made and weather they can be = gone beyond the power provided in enabling act.
made for whole country It can be challenged under:
-Weather the gov department must consult other people -Procedural ultra vires
before making the regulations. -Substantive ultra vires
-Unreasonableness
Negative resolution procedure: Procedural ultra vires:
Is often used for changes that are not controversial or only This judicial review is concerned on how the law was made
affect a small area of the country. It is laid before and weather the procedures laid down the enabling act
parliament for inspection and if no one raises an objection have not been followed correctly. If not, then the law can
within 40 days then automatically passes for law, some be declared as ultra vires and invalid.
bad law gets passed du8e to MPs have no obligation to Ex; agricultural, horticultural and forestry training board v
look. Aylesbury mushrooms ltd; declared invalid as didn’t
consult interested parties
Affirmative resolution procedure: Substantive ultra vires:
Are checked by parliament before they become law two This judicial review is concerned with weather the law goes
different checking methods; they must vote on their is made within the limits of the enabling act any law that
approval which is useful for controversial changes or those goes beyond these limits is declared ultra vires and is
that affect many people. Another is where the legislation is invalided; A-G v Fulham corporation; set up clothes
laid before one or both houses and only becomes law if a washing facility but invalid as they couldn’t charge them as
motion approving it is passed within a specified time. not in enabling act.
Scrutiny by the committee: Unreasonableness:
Is a group of MPs, that oversee the making of the statutory This judicial review is concerned with laws that are
instruments and alerts parliament to any which require unreasonable that no reasonable official could have made
special consideration. Main grounds are imposing taxes, them.
have a retrospective affect, goes beyond powers of Ex; Strickland v Hayes borough council; a by-law prohibited
enabling actor is unclear or deflective. They can only report any singing obscene song and use of bad language in area.
their findings and have no powers to alter the content. Declared unreasonable due the offence not restive to the
private home.
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