Controls on delegated legislation Flashcards
What are the 2 controls on delegated legislation?
Parliamentary control and judicial control.
What is the Enabling Act?
A piece of primary legislation that gives authority to government ministers or other public bodies to create delegated legislation.
What are the key features of the Enabling Act?
It sets out:
The scope of the powers delegated
The procedures to be followed
The limits to prevent misuse of power
What is the affirmative resolution procedure?
A control on delegated legislation that requires the approval of both houses of parliament within 40 days.
What are advantages of the affirmative resolution procedure?
Allows parliament to debate and vote on delegated legislation
Allows proper scrutiny of important issues
What are disadvantages of the affirmative resolution procedure?
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
What is the negative resolution procedure?
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.
What are advantages of the negative resolution procedure?
It is quick
MPs can still raise objections
What are disadvantages of the negative resolution procedure?
Most SI’s become law this way with no debate or vote
This means unfair or poorly drafted SI’s may not be detected
What is the joint committee on statutory instruments?
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.
What are advantages of the joint committee on statutory instruments?
Allows for detailed scrutiny of delegated legislation
It should detect SI’s that are unclear or defective
What are disadvantages of the joint committee on statutory instruments?
Cannot consider the merits of delegated legislation - only the technicalities
Cannot amend delegated legislation - can only report issues to parliament
What are the different parliamentary controls on delegated legislation?
The Enabling Act
Affirmative resolution procedure
Negative resolution procedure
The joint committee on statutory instruments
What is judicial review?
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.
What are the 3 types of ultra vires?
Substantive ultra vires
Procedural ultra vires
Unreasonableness ultra vires
What is substantive ultra vires?
When the delegated legislation goes beyond the powers set out in the Enabling Act.
What is an example of substantive ultra vires?
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.
What is procedural ultra vires?
When the correct procedure for making the delegated legislation has not been followed.
What is an example of procedural ultra vires?
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.
What is unreasonableness ultra vires?
When the delegated legislation is said to be ultra vires on the grounds that it is unreasonable.
What is an example of unreasonableness ultra vires?
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.
What are advantages of judicial review?
Allows individuals to object to unfair treatment and hold the government to account
The court can quash delegated legislation that is illegal or unreasonable
What are disadvantages of judicial review?
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
