Effectiveness of Parliamentary Controls - DL Model Answer

• Affirmative Resolutions are included in the Enabling Act/Parent Act as a safeguard and it means that it will be considered, debated and voted on by Parliament before becoming Delegated Legislation.
• This is effective method of control over Delegated Legislation because the Supreme Law Maker, the Legislature, has the ability to vote in favour of it so it becomes actual law, or not. Because it is laid before the House of Commons and House of Lords, the MPs are seen as representing the needs/views of their constituents and Peers who are experts and specialists.
• However, the effectiveness of Affirmative Resolution is limited because it only affects a quarter of Statutory Instruments created, so not all Delegated Legislation, or even all Statutory Instruments go through this method of scrutiny. Further, the Affirmative Resolution process is time consuming. This negates the main purpose of Delegated Legislation.
• Due to the nature of the majority system in Parliament, there could also be bias in the Affirmative Resolution process as the Government will vote for what they want. Finally, Affirmative Resolutions cannot amend Statutory Instruments, only approve, annul or withdraw, so are limited in their effectiveness.
• Negative Resolutions are the most common Parliamentary control of Delegated Legislation. This can save time as they automatically become Law after 40 days if not challenged, but if a challenge is made, it does give the opportunity for discussion and debate to take place. This will also lead to scrutiny of the Statutory Instruments, by MPs in the House of Commons and Peers in the House of Lords.
• However, they do lack effectiveness due to the fact that no action is required and the Statutory Instrument can become Law automatically after 40 days. Most Statutory Instruments are not challenged as there is such a large volume of incoming Statutory Instruments, which makes it difficult for Parliament to properly look at all of them and some may 'slip through the net'.
• The Scrutiny Committee is a group of MPs and Peers from both Houses of Parliament who review all Statutory Instruments and can draw attention of Parliament to any that need special consideration. This committee scrutinises Statutory Instruments. They will refer a statutory instrument back to Parliament if; it imposes a tax, it exceeds the powers of the Enabling Act, it is defective or needs to be clarified, it creates Retrospective Law. This can be deemed effective as it will draw attention where needed to possibly unnoticed issues.
• However, the Scrutiny Committee has been described as a 'Toothless Watchdog.' This is as it is impossible to review all Statutory Instruments, as over 3000 a year are produced. Further, they have no powers to amend the Legislation, only report back to Parliament, who may not make any changes to the Legislation.
• Finally, the Enabling Act created by Parliament creates the framework of the Law that delegates power to other bodies to make Delegated Legislation. They set out the power that Parliament wishes to delegate and without one nobody would have the power to make delegated legislation. Therefore, having control over this gives Parliament the power to control Delegated Legislation.
• The power given is only as extensive as Parliament wishes, e.g. it may say that the Minister for Department of Work and Pensions can increase the minimum wage every year but it limits it by saying he cannot decrease it under the National Minimum Wage Act 1998. It may include a number of safeguards such as specifying that certain organisations or experts must be consulted before delegated legislation is made. Or that affirmative resolution must take place. Parliament can repeal an Enabling Act at any time which gives them the ultimate control over the Delegated Legislation.
• However, the conditions included in the Enabling Act can be ignored by the bodies creating the Delegated Legislation, which could go unnoticed by the Scrutiny Committee or under a Negative Resolution. Also, if the initial legislation has not been written clearly enough, it can lead to the Delegated Legislation being written incorrectly as well.
• Therefore, it can be seen that the Parliamentary Controls over Delegated Legislation can be sometimes effective, but do have drawbacks. The power of Parliament to control the Parent Act is arguably the most effective control method.