Homework - Some Legislation Shenanigans

Read the Smoke-free (Premises and Enforcement) Regulations 2006 (on the website)

1.Who was this piece of delegated legislation made by?2.Under what primary legislation is it made? 3.To which part of the UK does it apply?4.S.2 of the Health Act 2006 allows for the appropriate national authority to define, in delegated legislation, what ‘enclosed premises’ mean. How have they been defined?5.How have ‘substantially enclosed premises’ been defined?6.Who is responsible for enforcing the ‘no smoking’ ban?7.Why was there a gap of six months between the making of the law and it coming into force? 1

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Orders in Council+

Privy Council

Statutory Instruments Bye Laws

Statutory InstrumemtsStatutory InstrumemtsDate:Date: Wednesday 19 April 2023

Lesson Lesson Outcomes:Outcomes:

Describe what the three main types of delegated legislation are

Explain how these three types of legislation work

Apply the three main types of delegated legislation to real life law

The Three types

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Orders in Council

A law passed in an emergency or under the Queen’s old

powers (‘prerogative’)

Statutory Instruments

A rule or regulation put forward by the relevant minister

Bye Laws

A law covering a specific area or ex-nationalised

companies

Under which type of secondary legislation do you think a law to close all farms because of a severe outbreak of Foot and Mouth disease would come into force?

Carry out the LOBO others task to grasp the key factors about each of the three types

Orders in Council

•Drafted by Government given formal approval by Queen and Privy Council •420 members of Privy Council•Only three or four Government Ministers attend meetings at which orders are made

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Orders in Council - Membership

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Can you guess the membership from the images?

Orders in Council - Membership

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All current and former Government Ministers

Senior Politicians (e.g. leading members of opposition parties)

Members of the Royal Family Two Archbishops

Senior Judges British Ambassador Leading individuals of Commonwealth

Appointment made by Queen and is for life

Orders in Council - Examples

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Transferring responsibilities between Government departments or to Devolved Governments

e.g. Scotland Act 1998

Dissolving Parliament before election

Bringing an Act of Parliament into force

e.g. S.2(2) Misuse of Drugs Act 1971

Compliance with EU directives

e.g. Consumer Protection Act 1987

Dealing with Foreign Affairs

e.g. Afghanistan (UN Sanctions) Order 2001

National emergency when Parliament is not sitting

e.g. After 9/11 – The Terrorism (United Nations Measures) Order 2001

Orders in Council – Student Task

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Read the News Article

1.What are the facts of the issue at hand?2.Which Court handed down the verdict?3.When will the judgement come into effect?4.What problems with Orders in Council can you spot?5.What powers do the Court have?

R v (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs

(2006)

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Bancoult, Regina (on the Application of) -v- Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] HL The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had been made (ineffectively) to assist the dispossessed islanders, but an order was created under prerogative powers which prevented their return save with consent. They now challenged the lawfulness of the constitution order.

Held – The orders were not unlawful, since they fell within the range of lawful Orders in Council. The actions of the respondent were properly open to severe criticism. The Queen in Council may legislate for a colony in the interests of the United Kingdom: “No doubt she is also required to take into account the interests of the colony (in the absence of any previous case of judicial review of prerogative colonial legislation, there is of course no authority on the point) but there seems to me no doubt that in the event of a conflict of interest, she is entitled, on the advice of Her United Kingdom ministers, to prefer the interests of the United Kingdom.” In reality the claim was a way of attempting to improve the financial provision allocated to them. There was no expectation created by the Foreign Secretary’s

But … Is it ever that easy?

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Click on the stories to take you to the BBC news stories of these decisions

2008 2012

Statutory Instruments

1. Drafted by legal department of the relevant Governmental department

2. Often used to update a law (i.e. to change fine levels for a criminal offence)

3. Sometimes wider powers given to fill in detail when it is too complex to go into the original act

4. Often referred to as regulations or orders

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Laws made by a Government Minister under the authority of the enabling Act in area of their responsibility

Statutory Instruments

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Often made inform of commencement orders

Find the full text of the Parent Act – The Railways Act 2005

1.Which section covers the Commencement Order?2.Which Secretary of State do you think this Parent Act delegates power too?3.What does the Parent Act allow the Secretary of State to do?4.Which sections of the Act are exempt the commencement order?5.Why?

Statutory Instruments

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Often made inform of commencement orders

Find the full text of the Statutory Instrument – The Railways Act 2005 (Commencement

Order No 8) Order 2007

1.What date did the Commencement order come into force? 2.Which sections of the Parent Act does this commencement order bring into force?3.What else does the Commencement Order tell us?4.Who has signed for Order? 5.On behalf of whom?

Statutory Instruments

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And finally our last bit of statute research …

Find the full text of the Parent Act– The Easter Act 1928

1.What is the purpose of this Parent Act?2.Why?3.Who does it require to make the Commencement Order?4.What do they have to do to be able to bring the Commencement Order in?5.Who do they need to consult with?6.What has happened to the commencement?

Click the Guardian link for help

Other examples - Statutory Instruments

Provides extra protection to consumers

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Law made to comply with EU is normally made by Statutory Instrument

E.g. Unfair Terms in Consumer Contracts Regulations 1999 – to comply with Unfair Terms in Consumer Contracts Directive 1993

Statutory Instruments

• Large volume of law made this way• Enforced in Courts and are just as much part of law• Some SI’s apply to whole of UK others to constitute parts

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Why do you think the number of Statutory Instruments have increased?

Bye-laws

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Made by Local Authorities or public corporations companies

Must be ‘confirmed’ by the relevant Minister

Enforceable in courts

Local Authorities make laws to apply in their own geographic area

County council – for whole county and town council for town

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Bye-laws

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Remember the Clean Neighbourhoods and Environment Act 2005? - In this a council can designate land as a poop scoop area and if not a fine will be due.

Read the Bye Law - The Fouling of Land by Dogs (Rother District Council) Order 2008

1.How does this differ from the Parent Act?2.What sort of Authority has created this Bye Law?3.Can you go online and find other Bye Laws which have been created to deal with the same problem?

Bye-laws

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Authority is given in many Acts of ParliamentMany are made under authority of Local

Government Act 1972

Normally displayed on lampposts

Most punishable with a fine

Bye-laws

Boddington v British Transport Police (1998)

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Public bodies Some corporations

Railways Act 1993 railway companies can

make laws

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Boddington v British Transport Police [1998] HL The defendant had been convicted under regulations made under the Act of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not include a power to ban smoking on all carriages.

Held – A defendant may challenge the validity of subordinate legislation in criminal proceedings whether or not the bye-law was defective on face of it. However, a ban on smoking on all railway carriages is a form of regulating the use of the railway, and his defence failed. ‘In approaching the issue of statutory construction the courts proceed from a strong appreciation that ours is a country subject to the rule of law. This means that it is well recognised to be important for the maintenance of the rule of law and the preservation of liberty that individuals affected by legal measures promulgated by executive public bodies should have a fair opportunity to challenge these measures and to vindicate their rights in court proceedings. There is a strong presumption that Parliament will not legislate to prevent individuals from doing so’.

Student Task

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Kirkby Lonsdale is a very pleasant little town on the edge of the Dales National Park. The main attraction is the river, especially good for picnics, Salmon fishing and sub aqua training. The drop to the water is about 60 feet. The depth of water underneath the bridge varies from inches to about thirty feet.

1. What type of delegated law is this an example of?

2. What kind of law has it created?3. Who passed this law?4. Can you name the actual enabling Act?5. Is it well drafted?6. What might be a reasonable excuse?7. How and where could this law be

challenged?8. Which Government Minister would be

responsible for this law?9. Why was this not passed by Parliament?

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Type of delegated legislation. Who makes it?

In what circumstances is it used? Examples

Orders in Council. Made by Queen and Privy Council

Statutory Instruments. Made by Government Ministers

By-laws. Made by local authorities and public corporations or companies

Plenary

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Type of delegated legislation. Who makes it?

In what circumstances is it used? Examples

Orders in Council. Made by Queen and Privy Council

To transfer responsibilities between Government departments.To dissolve Parliament.

To bring acts of Parliament into force.To comply with European Directives

To deal with Foreign Affairs

To deal with National emergencies

National Assembly of Wales (Transfer of Functions) Order 1999

Consumer protection Act 1987 (Product Liability) (Modification) Order 2000

Afghanistan (United Nations Sanctions) Order 2001Terrorism (United Nations Measures) Order 2001

Statutory Instruments. Made by Government Ministers

To update an act of Parliament

To bring an act or part of an Act into force – a commencement order.

To comply with directives from the European Union

To increase the amount of a fine or the amount of the national minimum wageRailways Act 2005 Commencement Order

Sale and Regulation of Goods to Consumers Regulations 2002

By-laws. Made by local authorities and public corporations or companies

To make laws for the good government of local issues

To make laws regulating the behaviour of the public on property belonging to a public body or company

By-Laws made under the Clean Neighbourhoods and Environment Act 2005

By-Laws restricting smoking on trains and stations (Boddington v BTP 1998)

Try matching the delegate legislation

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Suggest which type of delegated legislation would be used in the following circumstances:

1. To transfer the responsibilities for university education from the Education Department to the newly created Department of Higher Education

2. Designing a new road3. A law introducing updated health and safety requirements 4. Increasing the amount of a fine for failing to travel with a valid

train ticket5. Declaring a ‘state of emergency’ to cope with widespread

floods

Objectives

• Describe what the three main types of delegated legislation are

• Explain how these three types of legislation work

• Apply the three main types of delegated legislation to real life law

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Look at each of the objectives and then colour code yourself for each of them. Red – I don’t get it. I need some help understandingAmber – I think I understand but I need a little supportGreen – I understand and can try to help others who are not so clear