the controls of delegated legislation

• what are the two main controls of delegated legislation?

  Parliament and the Courts.
• what are the main parliamentry controls?

  Checks on the enabling act

  Requesting the DL to be laid before parliament

  scrutiny committees

  Consulations
• what does it mean if there are checks on the enabling act of a DL?

  Repealing the enabling act, and revoking the delegated power- it can also vary the power
• What does it mean if a DL is to be laid before parliament?

  It is typically for parliament's information. there will be 40 days for parliament to question the minister and debate their DL. There can either be negative or positive resolution.
• What does negative resolution mean in the context of laying a DL before parliament?


  There will be 40 days for parliament to question the minister and debate the law, without voting on it- the DL will become law unless parliament rejects it.
• What does positive resolution mean in the context of laying a DL before parliament?

  The enabling act may require a DL to have positive resolution from either or both of the Houses of Parliament. This means that parliament must vote on it- like the codes of practice under Police and Criminal evidence act 184 (PACE 1984).
• What do scrutiny comittees do in the context of parliamentry controls of DL?

  Scrutiny committees have been set up by Parliament to keep under review all delegated legislation and report to Parliament on their findings. The Joint Committee on Statutory Instruments was created in 1974 and reports to both Houses
• Parliament can require, in the enabling Act, that the delegated body consult with, or submit a draft instrument for approval to, experts, both within and outside their departments.
• Judges have some control of delegated bodies via the process of judicial review in the King's bench Division>
• The court in the King's bench division can declare the exercise ofdelegated powers invalid under the ultra vires rule. The court may declare that a public body, eg a Minister, has acted ultra vires, that is, he has exceeded, abused or acted totally unreasonably inexercising the law-making powers granted to him by the enabling Act.
• If the delegated legislation is ultra vires, itis void and ceases to exist. The delegated bodymust redraft the law.
• The court is dependent on an individualseeking judicial review and bringing the matterbefore them.
• Only people directly affected by the pieceof delegated legislation are entitled to bring ajudicial review action
• What are the two grounds upon which the courts can declare a DL to be void?

  Procedural ground

  Substantive ground
• What does that mean if a DL has been made void under procedural grounds?

  here the delegated legislation is invalid because the Minister has failed to follow the procedure laid down in the enabling Act, for example he has not consulted with a specified advisory body.
• What is an example of a DL being made void over the procedural ground?

  The Aylesbury Mushroom case where the Minister of Labourfailed to consult with the mushroom Growers Association
• what does it mean if a DL has been made void on the substantive ground ?

  here the delegated body has made law not authorised by theenabling Act (excess of power) or made law not intended by the Act (abuse of power) or has acted irrationally or unreasonably.
• What is an example of a DL being made void on the substantive ground?

  R (Rodgers) v Swindon NHS Trust where a woman was refused Herceptin for breast cancer even though the drug was provided for some patients in the same area
• what are the main points about the effectiveness of the controls on delegated legislation?

  • Parliamentary controls are limited by the volume of delegated legislation.
  • Lack of expertise among those scrutinizing delegated legislation.
  • Scrutiny Committee's power is limited to making recommendations.
  • The Secondary Legislation Scrutiny Committee can effectively check some statutory instruments.
  • Judicial controls depend on individuals being directly affected to challenge delegated legislation.
  • Public bodies have significantly more resources than challengers
• why might those scrutinising delegated legislation struggle to ensure that it is valid?

  Those scrutinizing delegated legislation may lack the necessary expertise and technical knowledge to determine whether it was validly made.
• Why is parliamentary scrutiny of delegated legislation limited?

  Parliamentary scrutiny is limited because of the high volume of delegated legislation passed every year, making detailed examination difficult.
• Why is the scrutiny committee's power over delegated legislation limited?

  The Scrutiny Committee can only make recommendations to Parliament and has no authority to amend or reject delegated legislation.
• how does the secondary legislation scrutiny committee contribute to the control of delegated legislation?

  The Secondary Legislation Scrutiny Committee can effectively check statutory instruments and provide some control over their use.
• Who can challenge delegated legislation in judicial control?

  Only a person directly affected by the delegated legislation or decision can challenge it in court.
• Why is it difficult for individuals to challenge delegated legislation in court ?

  Public bodies and government departments typically have far more resources than the individuals challenging the delegated legislation, making it an unequal contest.