OCR Law - Paper 2 - Section A

What is delegated legislation?

Law made by some person or body other than Parliament, but with the authority of Parliament

What is a statutory instrument?

Rules and regulations made by Government Ministers and their departments. They are given the power by an enabling act to make laws within their area of ministerial responsibility, meaning the areas that are connected with their department.

How are statutory instruments made and used?

The government department will consult with experts regarding the content of the laws, and then regulations are drafted by the legal department. Statutory instruments can be used to update a law already in existence.

What is an example of a statutory instrument?

The National Minimal Wage Regulations (which states that the minimum wage can be updated as necessary by a Gov't Minister)

What is an order in council?

A sovereign's order on an administrative matter, given on the advice of the Privy Council.

Who has the right to pass an order in council?

The Queen and the Privy Council have the right to pass laws called Orders in Council.

What is the privy council?

The Privy Council is made up of the senior politicians who are members of either the House of Commons or the House of Lords, both past and present, members of the Royal Family, archbishops and senior judges.

What do orders in council do?

Allows the government to make laws without going through Parliament. There must be an enabling act allowing the Privy Council to make Orders in council on the particular topic.

What are the uses of an order in council?

Transferring powers between government departments (e.g.- the National Assembly of Wales, Transfer of Functions Order 1999), Bringing an Act of Parliament into force, Giving legal effect to European Directives (e.g.- the Consumer Protection Act Order 2000), Make laws in times of emergency when Parliament is not sitting (e.g.- the Foot and Mouth Order), To update or amend existing laws (e.g.- the Misuse of Drugs Act 1971)

What are bylaws?

Bylaws are the rules adopted by local authorities and public bodies for governing their activities.

What needs to be in place before a bylaw can be used?

The authority of an enabling act, and the confirmation or approval of the relevant government minister

What act are most bylaws made under, and what does the act do?

The Local Government Act 1972, which allows Country Council to pass laws affecting a whole country and city.

What are public bodies and public utilities authorised to make bylaws for?

The regulation of the behaviour of the public on their premises

What is an example of a bylaw, and what act is it made under?

Under the Clean Neighbourhoods Act 2014 local authorities can designate no dog fouling areas

How is setting limits within an enabling act an example of parliamentary control over delegated legislation?

When only the people or bodies specified in the Act have the power to make law, Parliamentary Supremacy is maintained as Parliament remains in control as Parliament can repeal the powers in the enabling act at any time.

What is a scrutiny committee?

A group of MPs who oversee the making of statutory instruments and alerts parliament to any that require special consideration.

What are the main grounds of referral for a scrutiny committee?

Imposes a tax, appears to have retrospective effect (covers past events), goes beyond the powers given in the enabling act, or is unclear or defective

How are scrutiny committees an example of parliamentary control over delegated legislation?

Since MPs are government representatives, when they are checking over statutory instruments it means that each only goes forth if it has parliamentary approval

What is an example of a scrutiny committee, and what do they do?

The House of Lords Delegated Powers Scrutiny Committee checks for inappropriate sections in enabling acts and can bring them to the attention of the House during the committee stage

What is meant by "questioning of government ministers"?

MPs can question the responsible government ministers about the relevant delegated legislation at "Prime Ministers Question Time" or during debates

How is the questioning of government ministers a form of parliamentary control?

Since MPs are parliamentary representatives, when they question the motives and use of an act it means only acts that are in line with Parliament's views are approved

What is the first level of checking statutory instruments go through (in Parliament) before being passed?

Affirmative resolutions: Parliament must vote on their approval (or not) of the delegated legislation. This is used for important or controversial changes or those that affect many people. They cannot amend the instrument, just approve it or withdraw it.

What is the second level of checking statutory instruments go through (in Parliament) before being passed?

Negative resolutions: Used for changes that are not controversial or only affect a small area of the country or a small number of people. The delegated legislation is "laid" before Parliament for inspection. If no one raises an objection within forty days, it becomes law automatically

What is the drawback of scrutiny committees?

The scrutiny committee can only report their findings; they have no powers to alter the content of delegated legislation, and they may not have the technical expertise necessary to comprehend the legislation (so will not be able to pass a judgement on its effectiveness/appropriateness)

What is the benefit of questioning government ministers?

As the media are present, this gives publicity to the delegated legislation and also compels the minister to explain and justify the reasons for the new law.

What is the drawback of questioning government ministers?

Ministers are often skilled at avoiding questions, and there is not enough time to debate the legislation as fully as is perhaps necessary to produce high quality legislation

What is the drawback of negative resolution checking?

MPs are under no obligation to look at the delegated legislation so "bad" laws may pass unchallenged, and dangerous laws can be passed without Parliament realising under the forty day rule

What is the issue with parliamentary control over delegated legislation?

The law may become biased because Parliament control the legislation passed and may choose only to view what is relevant to them

What is judicial review?

When the validity of a piece of delegated legislation is challenged in the High court

How does Lord Brown define judicial review?

As an "exercise of the court's inherent power at common law to determine whether action is unlawful or not"

What is legislation challenged on during the process of judicial review, and how many are there?

The legislation is challenged on the grounds of ultra vires, of which there are three levels

What is the limitation of judicial review?

The courts must wait for cases to be brought to them before they can examine the delegated legislation. Cases of this type are rare as people normally accept the law rather than challenge it. Additionally, if a judge finds that there is an issue they can only declare the law invalid, they cannot simply amend it to correct the problem

What is the first level of ultra vires?

Procedural- This review is concerned with how the law was made and whether the process laid down in the enabling act have been followed correctly

What is an example of where a procedural ultra vires review was used?

The Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushrooms Ltd case

What is the second level of ultra vires?

Substantive- This review is concerned with whether the regulation goes beyond the powers granted under the enabling act

What is an example of where a substantive ultra vires review was used?

The A-G v Fulham Corporation case

What is the third level of ultra vires?

Unreasonableness- This review is concerned with whether the regulations are so unreasonable that no reasonable official could enforce them, the courts can declare them invalid

What is an example of where an unreasonableness ultra vires review was used?

The NHS Trust case with the Herceptin drug for breast cancer

What is the literal rule?

The literal rule requires judges to give all words in the statute their dictionary meaning, as dictated by Lord Esher when he said "If the words of an act are unclear then you must follow them even though they may lead to manifesting absurdity. The court has nothing to do with the question of whether the legislature has committed an absurdity"

What is the ratio of the Whitley v Chapel case (literal rule)?

The defendant was acquitted because he impersonated a dead person, who was not entitled to vote.

What are the advantages of the literal rule?

It means judges are following the exact words of Parliament, it prevents un-elected judges from making the law through precedent, and it makes the law more certain as the judge's results can be guaranteed.

What are the disadvantages of the literal rule?

It assumes that every act is perfectly drafted/understandable, words can have more than one meaning (or can be contranyms), and following the literal meaning of words may lead to an unfair decision.

What is the golden rule?

The golden rule allows judges to deviate from the literal interpretation of words or phrases in order to avoid an absurd result. It can also be used in situations when the words of an act only have one meaning but that word would cause an absurd result. In these cases, judges may change the words of the act to lead to a just result.

What is the ratio of R v Sigsworth (golden rule)

The application of the literal rule would have allowed a murderer to benefit from the killing of his mother, so the golden rule was applied

What are the advantages of the golden rule?

It provides an escape route for the literal rule which can ensure proper justice is served, it allows the judge to choose the most sensible meaning of a word where there are several possible interpretations, it avoids absurd results, and it helps to combat the problems of the literal rule.

What are the disadvantages of the golden rule?

It's limited in its use and is only used on rare occasions, it's not always possible to predict when courts will use the golden rule, and it may give a judge too much discretion and power over the courts (as "absurd" is a subjective quantifier)

What is the mischief rule?

Under this rule, the judges must look at the gap that parliament had felt was necessary to fill when they passed the act and then use this to inform their decision on any "mischief" with the act that arises with new situations posed by the implementation of the law.

What was the ratio in Smith v Hughes (mischief rule)?

A prostitute was charged with soliciting clients despite doing so from the window and not on the street as parliament implemented the mischief rule

What are the advantages of the mischief rule?

It promotes the purpose of the law and is more likely to produce a "just" result as it doesn't allow defendants to be acquitted on the trickery of language.

What are the disadvantages of the mischief rule?

It poses the risk of judicial law making as the judges are able to insert their own views into the law and it can create a degree of uncertainty (as each judge may have a different idea of what Parliament's intentions were) which can make it difficult for lawyers to advise their clients.

What is the purposive approach?

An approach that takes into account the social, political, and economic context of the Act's production and then applies the overall intent to the society of the day.

What was the ratio of R v Registrar-General, ex-parte Smith (the purposive approach)

The Adoption Act, s51 stated that any one should be able to have access to their birth certificate. The man who applied had a history of mental illness and it was believed that he would be violent to his birth-mother if the information was disclosed to him

What are the advantages of the purposive approach?

It leads to justice in individual cases as opposed to expecting a broad approach to work for all cases and it helps accommodate for new technologies and ideologies.

What are the disadvantages of the purposive approach?

It can allow judges to refuse to avoid the clear words of Parliament, it can be difficult to find out exactly what the intent of parliament was, and it leads to uncertainty in the law.

How can the act itself become an intrinsic aid to interpretation?

To decide what something in the Act means, the judges may draw a comparison with something elsewhere in the act. Clues may also be provided by the title of the Act or the subheadings within it.

How can explanatory notes in the act become an intrinsic aid to interpretation?

Acts passed since 1999 are accompanied by explanatory notes published alongside the Act.

What are the advantages of intrinsic aids to interpretation?

They are placed within the statue by Parliament themselves which means their intent is more likely to be followed with some acts going as far as to define the words themselves

What are disadvantages of intrinsic aids to interpretation?

It's not always included meaning judges have to depend on case law.

How can dictionaries and textbooks become extrinsic aids to interpretation?

Can help with definitions and research of academic views of a point of law

How can Hansard become an extrinsic aid?

The official daily report of what was said during parliamentary debates. It can give an indication of the reasons for passing legislation and the issues involved when the words of an act are vague or will lead to an absurd result.

What are the advantages of using Hansard as an extrinsic aid?

It's there for everyone to consult, giving the entire debate of parliament on the statute in question, which aids clarity.