Controls on delegated legislation

Question 1

What are the 2 controls on delegated legislation?

Answer 1

Parliamentary control and judicial control.

Question 2

What is the Enabling Act?

Answer 2

A piece of primary legislation that gives authority to government ministers or other public bodies to create delegated legislation.

Question 3

What are the key features of the Enabling Act?

Answer 3

It sets out:

The scope of the powers delegated

The procedures to be followed

The limits to prevent misuse of power

Question 4

What is the affirmative resolution procedure?

Answer 4

A control on delegated legislation that requires the approval of both houses of parliament within 40 days.

Question 5

What are advantages of the affirmative resolution procedure?

Answer 5

Allows parliament to debate and vote on delegated legislation

Allows proper scrutiny of important issues

Question 6

What are disadvantages of the affirmative resolution procedure?

Answer 6

It is a time-consuming procedure

It only applies if set out in the Enabling Act and most SI’s are not subject to it

Question 7

What is the negative resolution procedure?

Answer 7

When a draft order is laid before parliament for 40 days and if there are no objections, it becomes law.

Used mainly for uncontroversial provisions.

Question 8

What are advantages of the negative resolution procedure?

Answer 8

It is quick

MPs can still raise objections

Question 9

What are disadvantages of the negative resolution procedure?

Answer 9

Most SI’s become law this way with no debate or vote

This means unfair or poorly drafted SI’s may not be detected

Question 10

What is the joint committee on statutory instruments?

Answer 10

A parliamentary committee that considers all SI’s made under Enabling Acts.

Contains members from both houses and it assesses the technical qualities of SI’s.

Reports to parliament if any issues are found.

Question 11

What are advantages of the joint committee on statutory instruments?

Answer 11

Allows for detailed scrutiny of delegated legislation

It should detect SI’s that are unclear or defective

Question 12

What are disadvantages of the joint committee on statutory instruments?

Answer 12

Cannot consider the merits of delegated legislation - only the technicalities

Cannot amend delegated legislation - can only report issues to parliament

Question 13

What are the different parliamentary controls on delegated legislation?

Answer 13

The Enabling Act

Affirmative resolution procedure

Negative resolution procedure

The joint committee on statutory instruments

Question 14

What is judicial review?

Answer 14

It is when courts examine if government decisions are legal and fair.

If the decisions aren’t legal and fair, it is said to be ultra vires and will be made void.

Question 15

What are the 3 types of ultra vires?

Answer 15

Substantive ultra vires

Procedural ultra vires

Unreasonableness ultra vires

Question 16

What is substantive ultra vires?

Answer 16

When the delegated legislation goes beyond the powers set out in the Enabling Act.

Question 17

What is an example of substantive ultra vires?

Answer 17

R v Home secretary ex parte Fire brigades union (1995)

When the Home secretary made changes to remove firemen from the criminal injuries compensation scheme, it was declared substantively ultra vires.

Question 18

What is procedural ultra vires?

Answer 18

When the correct procedure for making the delegated legislation has not been followed.

Question 19

What is an example of procedural ultra vires?

Answer 19

The Aylesbury mushrooms case (1972)

A training board for mushroom growers was set up without consulting the affected parties. It was declared procedurally ultra vires.

Question 20

What is unreasonableness ultra vires?

Answer 20

When the delegated legislation is said to be ultra vires on the grounds that it is unreasonable.

Question 21

What is an example of unreasonableness ultra vires?

Answer 21

Strickland vs Hayes Borough council (1896)

A by-law prohibited obscene songs and language but was said to be unreasonable as it covered both private and public acts.

Question 22

What are advantages of judicial review?

Answer 22

Allows individuals to object to unfair treatment and hold the government to account

The court can quash delegated legislation that is illegal or unreasonable

Question 23

What are disadvantages of judicial review?

Answer 23

It can only happen if a person is well advised to bring a case, or if they can afford it

It is a slow process which causes delays in government decisions