Controls on Delegated Legislation

• 2 main ways of controlling delegated legislation:

  1. Parliamentary Controls
  2. Judicial Controls
• Parliamentary Controls:

  • this applies to Parliament.
  • Parliament mainly controls delegated legislation by checking the laws before they have been passed and deciding if they should be approved or not.
• Judicial Controls:

  • this applied to the Courts.
  • the Courts control delegated legislation by investigating the laws after they have been passed. Issues need to be reported to them through Judicial Review.
  • a law can be declared void if it is ultra vires (beyond the power) of the body who has tried to introduce the law.
• Parliamentary Controls:

  Parliament has 4 different methods used to check laws made by delegated bodies:

  1. Parent Act
  2. Scrutiny Committee
  3. Positive Resolution
  4. Negative Resolution
• Judicial Controls:

  • the courts can review existing delegated legislation if the case is brought before them using Judicial Review.
  • the courts need to decide if the body who made the delegated legislation has acted ultra vires.
• Ultra Vires = Beyond the Power
• Judicial Controls:

  3 types of ultra vires:

  1. Procedural Ultra Vires
  2. Substantive Ultra Vires
  3. Wednesbury Unreasonableness
• Parent Act - includes the rules on who can make laws, what they can make laws on, needs to be consulted, and if positive or negative resolution is needed. Can be repealed/ amended to take away power.
• Positive Resolution - Parliament must check and sign off on the law before it can come into effect. This happened with the Dangerous Dogs Act 1991.
• Negative Resolution - the law must be 'laid before Parliament' (e.g. made public) for 40 days and not be objected to before it can become law. This is the most common procedure. It was used with the Gamily Act 1968.
• Scrutiny Committee - The Joint Select Committee on Statutory Instruments (1973) reviews all Statutory Instruments and refers them to Parliament for review if they impose a tax, are retrospective, o beyond the powers granted, or are unclear/ defective.
• Procedural Ultra Vires - the correct procedure was not followed when the law was made. Seen in Aylesbury Mushrooms 1972.
• Substantive Ultra Vires - the substance of the law was not what the body was allowed to do. Seen in AG v Fulham Corp 1921.
• Wednesbury Unreasonableness - the law passed was so unreasonable that no reasonable person could think of it and if therefore wrong. Seen in APPH v Wednesbury Corporation 1948.
• Judicial Controls:

  The effect of a court making an ultra vires verdict is that the delegated legislation becomes NULL AND VOID. Therefore it can no longer be enforced as a law.
• Positive resolution - is effective because it ensures that every law is checked by Parliament before it comes into effect. Prevents abuse of power and deters bodies from trying to abuse it too. E.g. Dangerous Dogs Act 1991 Home Secretary had to have approval to add breeds to the list - However this is used rarely so deterrence not as effective.
• Negative resolution - is less effective because they often go unchecked and become law regardless of whether they may have issues. Gives delegated bodies opportunity to have a law 'slip through the net'. E.g. Gaming Act 1968 Gambling Commission rules use this - However, they do save time for Parliament.
• The Parent Act - an effective because they would often go unchecked and become law regardless of whether they may have issues. Gives delegated bodies opportunity to have law 'slip through the net'. E.g. Gaming Act 1968 Gambling Commission rules use this. However, they do save time for Parliament.
• The Parent Act - Is an effective control as it lays out original rules on when law can be passed, on what, and by whom. Can also be repealed to take power away from body if it is not used correctly. E.g. Local Government Act 1972 or Statutory Instruments Act 1946. However, wording could be manipulated by bodies wishing to have more power than they are given.
• Judicial Controls - are only effective when case is brought before court, means someone has challenged legislation through judicial review. If nobody challenges the law, it cannot be brought before the court. E.g. is nobody challenged the law in Aylesbury Mushrooms 1972. It would have still applied to Mushroom Growers. However, when cases do reach court they are able to declare law void so are very effective then.
• Joint Select Committee - is effective as it ensures that all Statutory Instruments are checked for any errors as well as any irregularities in terms of the laws being introduced. Discourages bodies from attempting to bring in laws they don't have the power for. However, with over 3000 Statutory Instruments being passed they may not be able to scrutinise them all in depth.