DELEGATED LEGISLATION Flashcards
What is parliamentary control?
The different ways in which Parliament controls delegated legislation.
What is the first way to control delegated legislation?
Firstly, a Parent Act is needed before any delegated legislation can be made. The Parent Act sets out the the limits for making delegated legislation, who can make the legislation and the procedures that needs to be followed. The Act can be repealed by Parliament at any time. An example of a Parent Act is the Road Traffic Act 1988. This Act was created by the minister of transport on the types of helmets worn by motorcyclists but he had to consult experts before he could do it.
What is the second way to control delegated legislation?
Secondly, either an affirmative resolution procedure or a negative resolution procedure will be needed for a statutory instrument to become law. The affirmative resolution procedure will require Parliament to vote their approval before a statutory instrument can become law. This procedure is followed for the Codes of Practice for the police. However, Parliament cannot amend the statutory instrument.
What is a negative resolution procedure?
Where no action is required by Parliament. Under this system the statutory instrument automatically becomes law after 40 days unless Parliament chooses to debate it and rejects it.
What is the other form of Parliamentary control?
Finally, there is a Scrutiny Committee (also known as Joint Committee) made up of members of the HoCs and the HoLs and has the power to review a statutory instrument before it becomes law.
If anything goes wrong then they will report it to Parliament who will then act on it. They usually report if the instrument goes beyond the power contained in the Parent Act, if it is designed retrospectively or if it is confusing.
The scrutiny committee can only make a report but they cannot act. However this enables the MPs to question the minister who drafted the statutory instrument. #PANS
What is judicial control?
An individual affected by DL can apply to the High Court who can exercise control over DL through a process called judicial review. It will review the decision of the lower courts and decide whether the DL is in fact valid.
If the DL is held to be ultra vires or unreasonable then the DL will be declared void and ineffective.
What is substantive ultra vires?
Substantive ultra vires means that the DL itself has gone beyond the powers given in the enabling Act. in Attorney General v Fullham Corporation, the corporation was given the power to build public washing facilities for the poor. It built a laundry that charged. It was substantive ultra vires as it went beyond the power they were given. So the DL was declared void.
