Non-substantative Law topics human rights

AQA A level law 3b human rights law paper 3

What is delegated legislation

Law made by a person/body but with the authority of parliament

Why is delegated legislation used

Parliament often lacks the time or expertise to create detailed laws, so they delegate law-making power to specialists

How does Parliament delegate law-making power

through the parent act AKA an enabling Act which creates the framework of the new law

3 types of delegated legislation

Statutory instruments, by-laws and orders in council

What things may the parent act specify?

WHO: the person/body who can make the more detailed law
HOW: the procedures the person/body should follow when making delegated law

Statutory instruments are made by who?

government departments and ministers within their area of ministerial responsibility

Example of a parent act and subsequent statutory instruments

Parent act - Road Traffic Act. using this the Minister for Transport can make statutory instruments concerning road traffic e.g. change the speed limits on a road

Statutory instruments are drafted…

by the legal team of the relevant gov departments and will require approval from parliament

How many Statutory instruments are passed each year?

3,000

Different things statutory instruments are used for (4 things)

• to update the law

• to change financial limits

• fill in the details needed for an act of parliament

• commencement order, to bring an Act of Parliament into force

example of statutory instruments used to update the law and to fill in the details needed for an Act of Parliament

Codes of practice under PACE made by Minister of Justice

example of statutory instruments used to change financial limits

to change level of fines

Example of a Statutory instrument commencement order

The Human Rights Act 1998 was brought into force in 2000 by a commencement order

By-Laws are made by who?

local authorities such as county or district town councils to deal with local problems

Who can also make by-laws

Public bodies and corporations to regulate the behaviour of the public whilst on their properties

By-laws are made under the authority of ‘parent’ Acts, a common one being…

the Local Government Act 1972

By-laws must be approved by the…

relevant government minister

Are by-laws enforceable in the courts?

yes

What 3 things are by laws used for?

• district/town councils: bans to deal with local problems

• district/town councils: traffic control

• public bodies and corporations to regulate the behaviour of the public whilst on their premises

Example of by law being used to deal with local problems:

ban on dog fouling in public places, or ban on drinking in public places

Example of by law being used to district/town councils for traffic control

parking restrictions in the town

Example of by law being used to regulate the behaviour of public whilst on public body or corporation premises

British Rail and British Airport Authority forbid smoking on their premises. This is a by-law regulating public behaviour.

Who can make Orders in Council

The King and the Privy Council under authority from several ‘parent’ Acts.

The privy council has the power to make law in emergency situations under the…

Civil Contingencies Act 2004

Who is in the Privy council

committee appointed by the King and consists of the PM and other leading government members

OICs are drafted by…

the government and given formal approval by the King and Privy Council and have national effect.

OICs allow the government to..

make law without going through parliament in emergency situations, and to amend a law without having to wait for a new Act of Parliament to be passed.

What 3 things are Orders in Council used for?

• transferring responsibilities between government departments

• to make law in times of national emergencies when Parliament are not sitting, or to make specific changes to a law

• to give European Union (EU) Directives

Example of Orders in council being used to transfer responsibility between gov departments

When the Ministry of Justice was created and the OIC was used to transfer the responsibility between the departments

Example of Orders in council being used to make law in times of national emergencies

In 2003, an Order in Council was used to alter the Misuse of Drugs Act 1971 to make cannabis a class C drug. The government decided it was a mistake to downgrade cannabis and 5 years later (in 2008) another Order in Council was issued changing cannabis back to a class B drug.

Example of Orders in council being used to give effect to European Union (EU) Directives

To enforce EU regulations e.g. minimum wage/working time directive

Parliament had different methods to control the making of delegated legislation, what are they? (2)

• checks on the enabling act

• checks on the delegated legislation

Checks on the enabling act: Parliament has initial control via the ‘parent’ act

as parliament will specify who has the power to make delegated legislation, the limits and extent of the delegated power and how the delegated legislation should be made and the procedures that must be followed

Checks on the enabling act: parliament can also…

revoke or amend the powers in the ‘parent’ Act at any time. If it does this then the right to make regulations will cease or change.

Checks on the enabling act: Delegated powers scrutiny committee in the House of Lords checks…

all Bills for any inappropriate enabling provisions. This Committee will report their findings back to the House of Lords at the Committee stage of the Bill, although they cannot amend the Bill.

Checks on delegated legislation - statutory instruments: a small number of SIs are subject to the positive resolution procedure, which means…

SIs can only go become law if they are debated and approved by the Houses within 28 days (occasionally up to 40 days). For example, SIs made under Police and Criminal Evidence Act 1984 regarding stop and search powers are subject to this procedure. Parliament can only approve or annul the SI, they cannot amend it

Checks on delegated legislation - statutory instruments: most SIs are subject to the negative resolution procedure. For example…

SIs made under the National Minimum Wage Act 1998 that implement any increases to the minimum wage are subject to this procedure. The SI is laid before Parliament and if it is not annulled within 40 days it automatically becomes law on the stated commencement date. This provides opportunities for members of parliament to look at SIs and raise any objections.

Checks on delegated legislation - statutory instruments: the Joint Select Committee on Statutory Instruments …

reviews and checks many statutory instruments and draws the attention of Parliament to the points that need to be considered. This is a more effective check than some of the others, but the downside is that the JSCI cannot amend the SIs.

Checks on delegated legislation - statutory instruments: the JSCI report findings back to the House for SIs that:

• Exceed authority of Parent Act

• Have not followed procedure stated in Parent Act

• Are unclear or defective

• Impose a tax or defective

• Have a retrospective effect and the Parent Act did not allow for this

Checks on delegated legislation - statutory instruments: Questioning of government ministers

Individual Ministers can be questioned by MPs in Parliament during ‘Question Time’ or during debates. They may be questioned about the work of their departments or their proposed regulations

Control by the courts of delegated legislation: The validity of a piece of delegated legislation can be challenged…

in the Kings Bench Division of the High Court through the ‘judicial review’ procedure. A judge will examine whether the piece of delegated legislation is lawful. Any individual affected by the delegated legislation can apply to the courts under the judicial review procedure.

Control by the courts of delegated legislation: Delegated legislation may be declared ‘ultra vires’ and therefore void and not effective if the ‘parent act’ is not fully observed. there are 3 types of ultra vires:

• procedural ultra vires

• substantive ultra vires

• unreasonableness ultra vires

Control by the courts of delegated legislation: Procedural ultra vires

concerned with how delegated legislation is made. Parent acts tend to specify the procedures that must be followed by delegated persons/bodies when making delegated legislation.

Control by the courts of delegated legislation: example of procedural ultra vires making the delegated legislation void and not effective

in the Aylesbury Mushroom Case the Minister of Agriculture failed to consult the Mushroom Growers Association as required by the parent Act and so the establishment of a training board was ultra vires and ineffective.

Control by the courts of delegated legislation: Substantive ultra vires

concerned with whether a delegated body has exceeded the powers given to them in the parent Act. Any delegated legislation made beyond the limits of the power can be declared ultra vires and therefore void and not effective.

Control by the courts of delegated legislation: Substantive ultra vires example

in A-G v Fulham Corporation the parent act allowed the corporation to provide washing facilities, not to set up commercial laundry and wash clothes for others and therefore doing so was held to be ultra vires.

Control by the courts of delegated legislation: unreasonable ultra vires

the courts may declare the delegated legislation to be void on the basis that it is unreasonable. This judicial control was established in Wednesbury Corporation case. For example, in R (Rogers) v Swindon NHS Trust the NHS Trust’s policy was deemed unreasonable as the NHS could not explain why they prescribed the Hereceptin drug to some cancer patients and not others.

The reasons for the use of delegated legislation (4)

• need for detailed law

• need for expert or local knowledge

• need for consultation

• emergency situations

The reasons for the use of delegated legislation: need for detailed law

• large number of rules and regulations which are needed to ensure society is safe and effective

• parliament does not have the time to create all the rules with enough detail

• other bodies can include all the necessary detail to ensure its effective, and parliament retains control through the parent act

The reasons for the use of delegated legislation: need for expert or local knowledge

• many regulations need expert knowledge of the subject matter in order for the laws to be effective

• parliament does not have all the knowledge needed

• best for par to debate main principles but leave detail for experts

• in by-laws, local councils are aware of their areas and issues of concern and can effectively deal with them

The reasons for the use of delegated legislation: need for consultation

• for technical matters it is important that consultation is completed on any of the regulations to ensure they are accurate and workable

• ministers are able to consult before drawing up regulations

• some enabling acts also require that certain regulations must be the subject of consultation before they are passed, for example any new or revised codes under PACE 1984 must be consulted on with a wide range of people/bodies such as the police authorities, the General Council of the Bar and the Law Society

The reasons for the use of delegated legislation: Emergency workers

Orders in Council can be passed in emergency situation when Parliament is not sitting, within a matter of hours whereas the process in parliament can be very lengthy

Advantages of delegated legislation (3)

• time saving

• access to technical expertise

• allows consultation

disadvantages of delegated legislation (3)

• undemocratic

• sub-delegation

• large volume and lack of publicity

Why was the European Union created

• after ww2, new movement to create unity between Germany and France

• idea was to foster economic corporation to be economically interdependent and more likely to avoid conflict

• trace origins from the European Coal and Steel Community (ESCS) formed in 1951 and the European Economic Community (EEC) formed in 1957 under the Treaty of Rome.

• ECSC and EEC were formed by Belgium, France, West Germany, Italy, Luxemborg and the Netherlands

• The UK joined the EEC on 1 Jan 1973

• EEC became known as the EU in 1993 following Maastricht Treaty

Member countries of EU

• now an economic and political union of 28 countries

• operate a single market allowing free movement of goods, service, capital and people

5 main institutions of EU

• the European Council

• the Council of the European Union

• The European Commission

• the European Parliament

• The Court of Justice of the European Union

what does the European Council do

• sets out overall strategy

• leaders of the 28 member states sit on the European Council

• meets in Brussels

• they do not exercise legislative functions and focus on defining policies and driving reform in the EU

What does the Council of the European Union do

• sometimes called Council of Ministers

• national ministers from the Government of each EU country meet to adopt laws and coordinate policies

• the main law-making body

• passing decisions requires a ‘qualified majority’, which means: 55% of countries representing at least 65% of the total EU population need to vote in favour.

• topics like foreign policy and taxation requires a unanimous vote

What does the European Commission do

• made up of 28 commissioners (one for each member)

• proposes new legislation to European Parliament

• ensures EU law is correctly applied by member countries (and may take legal action to enforce it if necessary)

• supervises the EU budget

what does the European Parliament do

• 751 MEP

• directly elected by population of the EU

• represent the interests of the people in their constituency

• cannot suggest new laws, examines legislation proposed by European Commission

What does the Court of Justice of the European Union do?

• sits in Luxemborg

• each Member State appoints one judge

• decide whether Member States are complying with their obligations under the Treaties

• rule on references made to it for preliminary rulings on point of law

Preliminary rulings and Article 267

• sometimes EU law can be interpreted in different ways by different Member States

• the national courts of Individual Member States can refer matters of interpretation of EU Law to the CJEU under Article 267

• enables the CJEU to ensure that EU law is being applied consistently

• CJEU rulings are binding, and the case is returned to the national court who will apply the clarified law to the facts

Sources of EU law, what does ‘primary’ legislation refer to?

Laws derived from treaties

Sources of EU Law, what does secondary legislation refer to?

law from 3 main sources: regulations, directives and decisions

primary legislation, treaties: Treaties were …

‘a formally concluded and ratified agreement between Member States’ - became part of English law automatically. Most important - Treaty of Rome, created EU (since 2009 now called the Treaty of the Functioning of the European Union).

primary legislation, treaties: As treaties were part of our law, individuals could…

rely on the provisions of the treaties directly as they had ‘direct effect’

primary legislation, treaties: Example of a Treaty’s provisions being used in the UK

Diocese of Hallam Trustee v Connaughton
Connaughton employed on a salary of £11,138 a year. when she left, job advertised a salary of £13,434. Successful applicant, a man, appointed a salary of £20,000. She could not use the Equal Pay Act 1970 to bring a claim for equal pay, but she could use Article 157 TFEU as EU law takes precedence over national laws.

Secondary legislation, regulations:

Regulations automatically become law in all Member States and have a direct effect - binding and effective. Example: Regulation on tachographs, the EU Commission took legal action against the UK for failing to enforce the Regulation.

Secondary legislation, directives:

Not automatically part of English Law, no direct effect. But places an obligation on all Member States to ensure a particular aim/objective was achieved by a particular date and become binding. Member States need to amend their own legislation to incorporate the particular aim/objective. Up to each MS how they wish to implement the Directive.

Secondary legislation, directives: example in UK

Working Time Directive adopted by EU as a health and safety measure in response to concerns over long working hours. Finally implemented in UK through the Working Time Regulations.

Secondary legislation, decisions:

the decision is binding on those to whom it is addressed. for example, Google fined €4.34 billion by the European Commission for violating anti-competition laws

Example of EU law beating national law

Factortame: Gov enacted the Merchant Shipping Act 1998, Spanish fishermen claimed this Act was contrary to EU Law as it restricted the free movement of fishing boats. HOL agreed that EU law was breached and the Act was invalid and ineffective

Four principles widely recognised as contributing to the rule of law:

• equality before the law is a fundamental principle of the rule of law

• arbitrary power on the part of the state

• accessibility of the law

• independence of the judiciary

an example of ministers’ arbitrary use of power being controlled by the rule of law

the case of R (Miller) v SS for Exiting the EU. SC ruled the gov could not use the royal prerogative to trigger Article 50.

Example of a case being re-heard due to one of the judges having links to a charity involved

Re Pinochet, re-heard as Lord Hoffman had links to Amnesty International which had campaigned on the issue

How judicial independence is achieved (3)

• security of tenure

• judicial immunity from suit

• independence from the Executive

Reasons for judicial independence

• maintaining the rule of law, prevent arbitrary exercise of power by gov ministers or officials

• deciding whether a gov’s behaviour is reasonable

• independent inquiries e.g. Grenfell Tower inquiry

• Impartial and free from improper influence, decisions in accordance with the law

Advantages of judicial independence (2)

• make decisions based only on facts of the case and after consideration of laws passed by parliament and the law stemming from previous judicial precedents

• judiciary can protect citizens from unlawful acts of government