Explain the controls on delegated legislation. (10 marks)
Delegated legislation is controlled by Parliament and the courts. This is to ensure that delegated powers are not abused. Parliament has limited control at the time the enabling Act is made as it sets out the perimeters for making delegated legislation under that act.
In addition, the Delegated Powers Scrutiny Committee in the House of Lords looks at all delegated legislation to see if the powers are inappropriate. It’s report is presented before the committee stage but it has no power to amend the bill. All delegated legislation has to be laid before Parliament before it comes into force and it is subject to either an affirmative resolution, where both Houses of Parliament have to vote approving the legislation within a certain time period, or a negative resolution where it is laid before Parliament for 40 days and if no member puts down a motion to annul it, then it becomes law.
The Joint Committee on Statutory Instruments, composed of members from both Houses, reviews all SIs. It can draw Parliament’s attention to those that need special attention. If an SI imposes a tax, is defective, needs clarification or exceeds the powers granted in the Act, it will be referred back to Parliament. Parliament itself holds the ultimate safeguard in that it can withdraw the delegated powers or revoke a piece of delegated legislation at any time.
Unlike a statute, the validity of delegated legislation can be challenged in the courts. Any person who has personal interest in the delegated legislation or is affected by it may apply to the courts under the judicial review procedure. This is the grounds that the delegated legislation is ultra vires (beyond the powers) and a piece of delegated legislation can be declared invalid in whole or in part.
This can either be in the form of procedural ultra vires, where a public authority has not followed the procedures set out in the enabling Act, as in Agricultural Training Board v Aylesbury Mushrooms Ltd where the ministry failed to consult the interested parties resulted in the delegated legislation being declared invalid. A claim of substantive ultra vires occurs where the delegated legislation goes beyond the powers granted in the enabling Act. In R (Haw) v Home Secretary, the Home Secretary tried to use the powers retrospectively. This was exceeding his powers and made the legislation invalid.
The courts will also declare invalid delegated legislation which is unreasonable. This may be because the rules are unjust, made in bad faith or so perverse that no reasonable person would have made them, as in R v Somerset County Council where councillors were swayed by irrelevant factors.
Discuss the advantages and disadvantages of delegated legislation. (10 marks)
Parliament does not have time to consider and debate every small detail of complex regulations. Parliament may not have the necessary technical expertise or knowledge in certain areas, for example health and safety regulations in different industries need expert knowledge and local parking regulations need local knowledge. It is impossible for Parliament to have all the knowledge on complicated and technical issues and therefore it is better for them to debate the main principles thoroughly but leave the detail to be filled in by those who have expert knowledge of it. Delegated legislation can be achieved more quickly than an Act of Parliament which allows flexibility as it can be amended more quickly if circumstances change. Delegated legislation can be revoked easily if it causes problems whereas an Act of Parliament would require another statute. It is impossible for Parliament to foresee all problems which could arise when passing a statute. When problems do arise, delegated legislation to rectify this can be put into place quickly. Ministers can have the benefit of further consultation before regulations are drawn up. This is particularly important regarding technical matters where it is necessary to make sure that regulations are technically accurate and workable.
The main argument against delegated is that it is undemocratic because it is made by unelected minsters rather than Parliament. There is a danger of sub-delegation, where the relevant government minister, who is given the original delegated powers, sub-delegates this to the civil servants in their department. This is not the case with by-laws, as local authorities are elected bodies and accountable. The large amount of delegated legislation makes it difficult to keep track of the current law. It receives little publicity compared to Acts of Parliament so people may be unaware that it exists. Delegated legislation shares the same problem of obscure wording as an Act of Parliament which can lead to difficulty in understanding.
