2A.2.2 Controls on delegated legislation

Question 1

Two types of controls on delegated legislation

Answer 1

• Judicial
• Parliamentary

Question 2

Judicial controls on delegated legislation

Answer 2

The courts control delegated legislation through a process known as judicial review.

An individual can apply to the High Court to decide if delegated legislation is valid or not so long as they are affected by it.

Judges then review the delegated legislation and decide whether or not its lawful.

Question 3

What are judicial reviews?

Answer 3

A piece of delegated legislation can be challenged in court by the procedure of judicial review.

It will be heard in the Administrative Court (in the KBD of the High Court), usually by two judges.

The person making the challenge must have sufficient standing or interest in the case and is therefore directly affected by the legislation.

Question 4

Grounds for a judicial review

Answer 4

Delegated legislation can be challenged on the grounds that it is:
- ultra vires.
- unreasonable.

Question 5

Ultra vires

Answer 5

Goes beyond the powers granted by parliament in the parent act.

Question 6

What happens if the delegated legislation is found to be ultra vires?

Answer 6

It is declared void and ineffective.

Question 7

What are the two types of ultra vires?

Answer 7

• Procedural
• Substantive

Question 8

Substantive ultra vires

Answer 8

When the delegated legislation goes beyond the powers granted in the enabling act.

Cases:
- Attorney General v Fulham Corporation
- R v Secretary of State for Health ex parte Pfizer

Question 9

Attorney General v Fulham Corporation

Answer 9

The corporation was given the power to build public washing facilities. It built private laundry. This was ultra vires as it went beyond their powers.

Question 10

R v Secretary of State for Health ex parte Pfizer

Answer 10

It was held a circular from the Secretary of State for Health advising doctors not to prescribe viagra went beyond the powers given in the enabling act.

Question 11

Procedural ultra vires

Answer 11

When the courts declare that the procedures set out in the procedures set out in the enabling act for creating delegated legislation have not been followed.

Case:
- Aylesbury Mushrooms case

Question 12

Aylesbury Mushrooms case

Answer 12

The minister was required to consult any organisations concerned with mushroom growing.

He did not consult with the Mushroom Growers Association, which represented 85% of mushroom growers so his order establishing a training board was declared invalid.

Question 13

What is the “wednesbury unreasonableness”?

Answer 13

Where the courts declare invalid any delegated legislation that is unreasonable.

Case:
* Associated Picture House v Wednesbury Corporation

Question 14

Case for Wednesbury unreasonableness

Answer 14

Associated Picture House v Wednesbury Corporation

Question 15

Associated Picture House v Wednesbury Corporation

Answer 15

The court decided that the local council had behaved unreasonably in banning children from local cinemas on Sundays.

The term “Wednesbury unreasonable” is “so unreasonable that no reasonable local authority could have decided that way”.

Question 16

Why are parliamentary controls on delegated legislation needed?

Answer 16

More delegated legislation is passed each year than primary legislation.

Lots of laws are being made by bodies other than Parliament. These laws are not subject to the scrutiny of the parliamentary process.

Most delegated legislation is not made by elected bodies so it is important to make sure that the power is not abused and is controlled.

Question 17

How does parliament scrutinise delegated legislation?

Answer 17

• Approval of the parent act
• Affirmative resolutions
• Negative resolutions
• Questioning of ministers
• Scrutiny by Committeees

Question 18

Affirmative resolution

Answer 18

A small number of Statutory Instruments will be subject to this procedure. It means that the Statutory Instrument will not become law unless specifically approved by Parliament.
The need for an affirmative resolution will be included in the enabling Act.

One of the disadvantages of this procedure is that Parliament cannot amend the Statutory Instrument; it can only be approved, annulled or withdrawn.

Question 19

Negative resolution

Answer 19

Most Statutory Instruments will be subject to a negative resolution.

This means that the relevant Statutory Instrument will become law unless rejected by Parliament within forty days of publication.

The main problem with this procedure is that very few of the Statutory Instruments will be looked at, as so many are made each year.

Question 20

Approval of the parent act (as a control of delegated legislation)

Answer 20

Parliament has initial control over what powers are delegated, as the enabling Act sets out the limits within which any delegated legislation must be made.

For example, the enabling Act will state:
- which government minister can make the regulations
- the type of laws to be made and whether they can be made for the whole country or only for certain places
- whether the government department must consult other people before making the regulations.

Parliament also retains control over the delegated legislation as it can repeal (withdraw) the powers in the enabling Act at any time. If it does this, then the right to make legislation will cease.

Question 21

Questioning of government ministers

Answer 21

• Individual ministers may also be questioned by MPs in the House of Commons on the work of their departments.
• This can include questions about proposed or current delegated legislation.

Question 22

What are the main grounds for referring a statutory instrument back to Parliament?

Answer 22

• it imposes a tax or charge - this is because only an elected body (Parliament) has such a right
• it appears to have retrospective effect which was not provided for by the enabling Act
• it appears to have gone beyond the powers given under the enabling legislation
• it makes some unusual or unexpected use of those powers
• it is unclear or defective in some ways

Question 23

Scrutiny of delegated legislation by committees

Answer 23

These bodies are an effective check on Statutory Instruments:

• the Joint Committee on Statutory Instruments (usually called the Scrutiny Committee)
• the Secondary Legislation Scrutiny Committee in the House of Lords.

These committees can only check the legislation once it has been made and has come into force.
They can review all Statutory Instruments and, where necessary, draw the attention of Parliament to points that need further consideration. However, the review is a technical one and not based on policy.

Question 24

Effectiveness of Parliamentary controls

Answer 24

Scrutiny of statutory instruments by the Secondary Legislation Scrutiny Committee can be said to be a number of statutory instruments. However, due to the number of statutory instruments made each year, the Committee are unable to thoroughly check all of them.

The Delegated Powers and Regulatory Reform Committee is a committee of the House of Lords and any inappropriate provisions can be brought to the attention of the House before the Committee stage.

This is considered to be an effective control because, if enabling provisions are made appropriately, it is more likely that legislation made under the authority of them will also be appropriate. The various Scrutiny Committees can only report back their findings to either House; they have no power to alter any Statutory Instrument.

The main problem with this form of scrutiny is that the review is only a technical one, limited to reporting back. Even if a Committee discovers a breach, they cannot alter the regulations or stop them from becoming law. They can only draw the attention of Parliament to the matter.

When the Affirmative Resolution procedure is required there will, at least, be some debate in Parliament and it will usually be used for very important and potentially controversial matters. However, it is a time-consuming procedure and it relies on time being allocated to debate. If there is a dispute, then the Government will generally win a vote due to its majority in the House of Commons. Parliament cannot amend the statutory instrument; it can only be approved, annulled or withdrawn.

The majority of Statutory Instruments are subject to the negative resolution procedure but, as there are so many to be considered, it is likely that only a few will be looked at in detail. This procedure is considered to have limited effect as there is no strict requirement to look at Statutory Instruments made under this procedure. Most legislation made this way is not challenged and automatically becomes law after 40 days. On the other hand, a member of either House can raise an objection which may provide opportunity for debate and more detailed consideration.