There are three type of delegated legislation: - rules, regulations and orders, issued by ministers, national in effect; the Lord Chancellor was given power regarding the legal aid schemes, while the minister for transport will be able to deal with necessary road traffic regulations. - issued by local authorities (and some public corporations), local in effect. - issued by the Privy Council, generally only used in emergencies; orders in council under the Emergency Powers Act 1920, this authority is usually only be exercised in times of emergency when parliament are not sitting.
Control by parliament is fairly limited, though obviously parliament has the initial control with the Enabling Act which sets the parameters within which the delegated legislation is to be made. In addition, a Delegated Powers Scrutiny Committee was established in 1993 in the House Of Lords to consider whether the provision of any bills delegated legislative power inappropriately. It reports its findings to the House of Lords before the committee stage of the bill, but has no power to amend bills. The main problem is that there are no general provisions that the regulations made under the enabling act have to be laid before parliament for the MPs to consider them. However, a few enabling acts will say that this has to happen.
Limited nature of delegated powers means that courts can annul DL where it is ultra vires (outside or beyond the power). Substantive ultra vires - subject matter outside scope of power (A-G v Fulham Corp [1921]). Procedural ultra vires - subject matter intra vires but serious failure to comply with a mandatory procedural requirement - e.g. failure to consult (Agricultural Training Board v Aylesbury Mushrooms [1972])
Parliamentary controls may seem to conflict with need to save parliamentary time however, a responsible Parliament must monitor the use of powers it has delegated. There are two main forms of oversight, affirmation process; most SIs must be affirmed before coming into force, Hansard Society proposed to refer draft SIs to relevant departmental select committee for policy review before affirmation - not implemented. Scrutiny committee; reviews technical merits of all draft Sis, Committee acts as a filter so that Parliament need only consider the small number of instruments referred.
- Discuss advantages and disadvantages of delegated legislation as a source of lay.
Reason for and against delegated legislation; it saves parliamentary time, it deals with complex and technical issues for example health and safety regulations.
It is quicker and easier to amend and update than primary legislation. It makes it possible to respond quickly to emergencies. It allows for local variation to meet local need.
DL results from transferring law-making powers from the legislature to the executive therefore delegated powers must be subject to effective checks and controls to ensure accountability and prevent misuse.
Positive affirmation - instrument only comes into force after approval by positive resolution in Parliament
Negative affirmation - instrument comes into force unless annulled by a negative resolution in Parliament
Negative more common BUT reliance on this may mean draft instruments receive inadequate policy scrutiny
DL inevitable and beneficial, Executive law-making needs effective checks and controls, present controls are largely adequate and need to improve policy review of draft SIs by Parliament.
