The third form of delegation legislation is regulations. Within this form the law making power is only given to large bodies, such as railway companies and British Airport authorities. The rules made need to get approval from parliament before they can be passed. A case that illustrates this is the Boddington v British Transport Police case. This case challenged the charge of illegally smoking in a railway carriage. The case used the basis that such a rule was ultra vires. The case went to H/L and failed.
The final form of delegated legislation is orders in the council. This order requires a meeting of the Privy Council and has to have Queen present. In order for any laws to be made this way it has to involve members of the Cabinet, some of which may be appointed Privy Councilors. This type of law making power may be used in such circumstances as another outbreak of foot and mouth. This type of law making powers is mainly excised in the case of emergencies, under the emergency Powers Act 1920. The use of this act was applied in the of 1926 when it was in force for eight months, though the strike itself only lasted nine days.
However, there needs to be some control over delegated legislation other wise the law would be to rigid. One control would be about consultation. There needs to be a period of consultation that takes place when laws are made by people other than those in parliament. Consultation has to take place with experts and with those who are most likely to be affected by the provisions once they have been made enforceable. There is also a requirement for the publication of a draft of the proposed rules.
Another control over delegated legislation is one that is exercised by the courts. This control is made by a procedure called Judicial Review. Judicial Review is about the validity of the rules made. This relates to the intra and ultra vires, which is whether the rules in question have been made within or beyond the powers granted by parliament in the Enabling Act. There are two different types of ultra vires, procedural and substantive.
Procedural: Instruments will be held to be ultra vires if a mandatory procedural requirement has not been followed, but will not be if the procedure is only directory.
Substantive: SIs are substantively ultra vires if they impose a tax, interfere with the basic rights of subject e.g. Freedom of speech, or allow sub-delegation of powers, unless expressly authorized by parent act.
Delegated legislation that is declared ultra vires is unenforceable and is seen as being ruled as void at law which means it is treated like the law had never been made. A case that illustrates this is R v Home secretary, ex parte Fire Brigades Union. In this case the Home secretary had made alterations to the Criminal Injuries Compensation scheme but had exceeded the power granted to him in the Criminal Justice Act 1988. Another case that illustrates this is the Aylesbury Mushroom case. In this case all the possible organizations that could be affected by delegated legislation were not informed. This therefore made that piece of delegated legislation ultra vires
Another way in which delegated legislation is challenged by the Courts is when cases are found unreasonable. This means that the decision was so extreme that may intervene to correct it. A case that illustrates this is the Associated Provincial Picture Houses case. They were given a license by the defendant local authority to operate a on the basis that no children under 15 were allowed in the cinema on Sundays. The claimants sought this fact unreasonable and therefore the unreasonable law was enforced.
Furthermore, another control that effects delegated legislation is the controls by parliament. The enabling act is used to provide a framework of general principles which is then used to make much richer and detailed rules. These rules need to ensure that they don’t get declared void. In order to do this the rules need to ensure they are intra vires the Parent Act.
Parliament has to decide whether or not a proposed delegated legislation is the subject of either an affirmative or negative resolution procedure. Before becoming law the resolutions need to be laid out before one or both of the Houses.
An affirmative resolution is a procedure that can only become law if parliament approves the law by vote. This vote is taken with a specified time which is either 28 or 40 days. Parliament must approve it as drafted, annual or withdraw the Statutory Instruments. They do not have the power to amend it. Due to this only a very small number of SI’s are made under the affirmative resolutions procedure. The last draft that was subject to the affirmative procedure related to parliamentary constituencies and was rejected by the House of Commons.
However, a negative resolution procedure is slightly different. Any SI that is not passed by the affirmative resolution will become subject to this method. The SI’s in this procedure will become law unless parliament rejects in within 40days. The last negative resolution procedure was passed by the House of Lords and was related to the Greater London Authority Election Rules.
The last control over delegated legislation is the joint committee on Statutory Instruments, also called the Scrutiny Committee. Scrutiny Committee’s give a more effective check on all delegated legislation that is trying to passed. Its purpose is to review all statutory instruments and to draw both houses attention to anything they believe should be reconsidered. They check taxes and charges and make sure that they do not contain any ultra vires. The committee is not allowed to amend the SI’s, but are only there to make sure that matters of concern are brought to both houses attention.
Bibliography:
Sixth Form Law: used to research cases needed and to understand the topics I needed to write about.
Information booklet given by the teacher: gave a detailed plan about what I had to write about.
