Exercising Control over Delegated Legislation
Control over Delegated Legislation
Deleted Legislation in many instances is made by non-elected bodies and since there are so many people with the power to make delegated legislation, it is important to have some control over it. The Control is exercised by the Parliament and the Courts. There also may be public inquiry before law is passed on an especially sensitive matter, such as planning laws which may affect the environment.
Control by Parliament:
Fairly limited, though Parliament has the initial control with the enabling Act which sets boundaries within which delegated legislation is made. The parliament retains control over delegated legislations as it can repeal the powers in the enabling Act at any time. If does so then the right to make regulations will cease.
Delegated Powers Scrutiny Committee:
*Established in 1993 in House of Lords
Purpose: to consider whether the provisions of any Bills delegated legislative power inappropriately. Reports the findings to the House of Lords before Committee stage of Bill, but has no power to repeal or amend the Bills.
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Problem: there is no general provision that the regulations made under the enabling act have to be laid before Parliament for the MPs to consider them .A few enabling acts will say that this has to happen.
Many statutory instruments will be subject to affirmative resolution. The Statutory Instrument won’t become law unless specifically approved by Parliament. If there is a need for affirmative resolution, it will be mentioned in the enabling act for example: an affirmative resolution is required before new or revised police Codes of Practice under the Police and Criminal Evidence Act 1984 can come into force.
Disadvantage: Parliament cannot amend the statutory instrument, it can only be approved, annulled or withdrawn.
The many other statutory instruments will be subject to a negative resolution, this means that the relevant statutory instrument will be law unless rejected by Parliament within 40 days. The ministers may be questioned about the work of their departments by the MPs, these may include questions on proposed regulations.
Also called the Joint Select Committee on Statutory Instruments which was formed in 1973 Its Purpose is to review all statutory instruments and ,when required will draw attention of both Houses of Parliament to points that need further consideration. The review is a technical review rather than being based on policy. The main grounds of referring a statutory instrument back to the Houses of Parliament are that:
*It imposes a tax or charge-because only an elected body has such a right
*It appears to have retrospective effect which was not provided for by the enabling Act.
*It appears to have gone beyond the powers given under the enabling legislation or it makes some unusual or unexpected use of those powers.
*It is unclear or defective in some way.
-This committee can only report back its findings but does not have the power to alter any statutory instrument.
Control by Courts:
Delegated Legislations can be challenged by the court if they are ultra vires i.e. if they go beyond the powers that the Parliament granted in the enabling act. The questioning of validity may be done through judicial review procedure or may arise in a civil claim between two parties, or an appeal.
Delegated legislations which are ruled to be ultra vires are void or not effective. This was illustrated in R v Home Secretary, ex parte Fire Brigades Union (1995) where changes made by the Home Secretary to the Criminal Injuries Compensation scheme were held to have gone beyond the power given to him in the Criminal Justice Act 1988.
The court presumes that unless and until an enabling Act expressly allows it, there is no power to do any of the following:
*Make reasonable regulations- in Strickland v Hayes Borough Council (1896) a bylaw prohibiting the singing or reciting of any obscene song or ballad and the use of obscene language generally, was held to be unreasonable and so ultra vires, because it was too widely drawn in that it covered acts done in private as well as those in public.
It is also possible for the delegated legislation to be declared as ultra vires because the correct procedure has not been followed. For e.g. in cases like Eynesbury Mushroom case (1972) or R v Secretary of State for Education and Employment ,ex parte National Union of Teachers (2000).
Statutory instruments can also be declared void if they conflict with European Union Legislation.