Bylaws are created by public corporations and local authorities, like County Councils and deal with matters involving their area and apply only to that area. County Councils may create a bylaw to help improve the appearance of their areas and provide safety regulations such as regarding the use of footpaths in that area. Public corporations create bylaws including safety rules for the London Underground which have legal force.
b). Describe how delegated legislation is controlled by both the courts and Parliament. Consider the effectiveness of these controls (15 marks).
Parliament controls delegated legislation as they are able to pass an Act on the same subject and are able to revoke the legislation. They also have control through negative procedure, where a statutory instrument becomes law unless Parliament votes against it. Some of the delegated legislation could be cancelled if Parliament passes a motion called a ‘prayer’ which calls for an annulment within 40 days. If this motion was put forward by a member of the opposition party, it would be debated, otherwise the legislation becomes law. The majority of Enabling Acts state that all delegated legislation is required to undergo the negative procedure. Parliament also has control through the use of affirmative procedure, although this is less commonly used. This is where the statutory instrument becomes law so long as Parliament agrees. Some Enabling Acts state that delegated legislation has to be approved by both Houses of Parliament within a certain time limit. The affirmative procedure involves a stricter control of delegated legislation, as the legislation has to be considered by Parliament, instead of being considered in certain circumstances. The Scrutiny Committee is another control method. The committee can’t decide whether the legislation is good or not, but it is able to recommend that Parliament reviews the instruments, as long as it considers, whether the body that Parliament delegated the legislation to, acted in excess of the Enabling Acts authority. They also need to consider whether the ministers have used the powers given unexpectedly, whether the SI has been worded properly or not and whether it needs more explanation. There are also Standing Committees on delegated legislation, who can also consider SI’s instead of Parliament. This means that Parliament can scrutinise the legislation without taking up too much time on the floor.
The Courts are also able to control delegated legislation and can be challenged in courts through judicial review. It could also be a claim in the civil courts to find out whether the legislation is ultra vires. Procedural ultra vires involves a complaint where the Enabling Act procedures aren’t followed. Substantive ultra vires is where the rules made under the Enabling Act go beyond the powers delegated by Parliament. There is a second type of substantive ultra vires shown in Associated Provincial Picture Houses v Wednesbury Corporation (1948) where courts are able to decide that the legislation is invalid where the rules are so unjust, that it doesn’t seem as though a reasonable body would have made them. There are also prerogative orders which are used in cases of judicial review, which includes quashing, mandatory and prohibition remedies. Quashing cancels an ultra vires decision; this could involve reversing a local authority’s decision, where it had acted ultra vires. Mandatory involves an order to do something. A prohibition order is used to stop something occurring in the future, for example, it may prevent a tribunal going ahead with a hearing outside of its powers.
Before the powers of an Enabling Act can be put into action, there must be a consultation with a number of organisations or persons, as in the Learning and Skills Act (2000) which gives the Secretary of State for Education, the authority to provide certain services which can be of good use in a young person’s education. This Act also states that the Secretary has to consult with a range of bodies like a health authority and the police beforehand.
These methods of control are quite effective as the decisions in the Enabling Act can be questioned through judicial review, monitored and scrutinised by the Scrutiny Committee. In the case of the Agricultural Board v Aylesbury Mushrooms Ltd (1972), where the validity of the legislation was questioned with a judicial review, as the minister failed to consult the Mushroom Grower’s Association, which represented the majority of mushroom growers, therefore making the order invalid against mushroom growers. Delegated legislation was also subject to a judicial review in R v SoS Health Ex P Pfizer Ltd (1999) where it was argued that the Enabling Acts- National Health Services Act (1977) and the Health and Medicines Act (1988) did not authorise doctors to prescribe Viagra, this legislation was held to be unlawful because it went against EU legislation. These are also effective because they reduce the overloading and pressure on Parliament, are more flexible and can be introduced and effective immediately.
It is also argued that these methods of control are ineffective, as the laws made can be quite complex and are made with little supervision from Parliament, for example, the Sierra Leone Order 1997, which banned the selling of arms in Sierra Leone. It is argued that these sorts of regulations are created with little public knowledge and don’t receive a lot of criticism in the media or scrutiny by Parliament. This has also been acknowledged in a report made by the Commons Select Committee on Procedure in 2000. Legislation involving affirmative procedure is subject to more debate than those involving negative procedure, even if the negative procedure involves controversial matters. It is also stated that time and expertise is often wasted where more controversial issues are dealt with in a matter of minutes, whereas major changes in the law can pass through Parliament undebated, simply because they are in negative statutory instruments.
