Parliamentary and Judicial Controls for Delegated Legislation*

Question 1

Name the two ‘Primary controls’ that Parliament have over delegated legislation.

Answer 1

1) Abolition of the enabling act
2) House of Lords Delegated Powers and Regulatory Reform Committee - examines bills and reports back to the House of Lords during the legislative process.

Question 2

What is the title of the joint committee that informs both houses of any SI that goes above the powers in the enabling act.

Answer 2

Joint Committee on Statutory Instruments.

Question 3

Describe the Negative Resolution Procedure.

Answer 3

The SI will automatically become law within 40 days unless there is a notion from either house that opposes the SI.

Question 4

Which resoluton procedure relates to roughly 10% of SIs?

Answer 4

Affirmative Resolution Procedure.

Question 5

What is the affirmative resolution procedure?

Answer 5

Both houses have to approve within 28 days.

E.g. must be used when amending the PACE Code of Practice.

Question 6

What is the Super affirmative resolution procedure?

Answer 6

Legislative Reform Orders must be expressly approved by both houses to become law.

Question 7

Give two disadvantages of the Parliamentary controls for delegated legislation.

Answer 7

Disadvantages:
- Parliament cannot review ever piece of delegated legislation - 3000/4000 passed every year - issues with legislation go unresolved.

• As with Parliamentary committees, their suggestions for amendment may go ignored by the government - however, a report by the Constitution Unit in 2001 found roughly 40% of proposals are acted upon by government.
• Process lacks scrutiny as the negative resolution procedure is used more regularly - laws may be passed without debate.

Question 8

Give two advantages of the Parliamentary controls for delegated legislation.

Answer 8

Advantages;
- Parliamentary sovereignty is maintained - as they are able to repeal and amend any enabling act - also under no obligation to act upon proposals - e.g. 40% of Committee proposals are acted upon - the government retain the authority over the controls.

• The House Delegated Powers and Regulatory Reform Committee saves Parliamentary time by ensuring that neither the Houses of Commons and Lords scrutinise bills - in spending more time scrutinising, issues with enabling acts are resolved before the law is passed - also Parliament are able to spend time producing more SIs - law is changed quicker.

Question 9

Give two advantages of the judicial controls of delegated legislation.

Answer 9

Advantages:
- Judicial precedent is highly useful when predicting the outcome of future cases - R(Bono) v. HDC - council tribunals with conflicts of interest - therefore individuals are able to weigh the merits of their case before spending lots to bring their JR case.

• Judicial review encourages Parliament to correct inadequacies with the law as they may conflict with human rights - e.g. R (Anderson) v. Secretary of the Home Dept. - s.29 of the Crime (Sentences) Act 1997 violated article 6. - later repealed by s.303 of the Criminal Justice Act 2003.

Question 10

Give two disadvantage of the judicial controls of delegated legislation.

Answer 10

Disadvantages:
- Judicial review can be costly - average cost = £20,000 + - must be applied for within three months - funds and resourced must be gathered within that time.

• Parliament may ignore the suggestions made by the High Court
  as Parliamentary sovereignty means Parliament are under no duty to accept the ruling - judicial independence - e.g. R (Wright) v. Health Secretary - scheme under the Care Standards Act 2000 was a violation of Article 8 - Parliament ignored the suggestion.