Control of Delegated Legislation
- Created by: Shannon Cunningham
- Created on: 12-05-14 09:20
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- Control of Delegated Legislation
- Why is it controlled?
- It is important that there is some control over Dl.
- Parliament has a system where by it maintains a certain level of control over it.
- Control by Parliament
- Affirmative resolutions
- Some enabling acts require an affirmative resolution from Parliament before the DL becomes law.
- This is usually if the parent act involves a controversial area of law. E.G. Abortion Act
- The DL normally has to be laid before both houses (lords & commons). Only when both houses have agreed it becomes law.
- Some enabling acts require an affirmative resolution from Parliament before the DL becomes law.
- Negative resolutions
- If the Parent act specifies a negative resolution the DL becomes law on the day it is laid before court.
- Over next 40 days, any member of Parliament who objects to the contents of the DL can out down a motion called a 'prayer'
- At end of debate, either house may pass it which will make the DL void. This means the DL may have been a law before Parliament abolished it.
- Over next 40 days, any member of Parliament who objects to the contents of the DL can out down a motion called a 'prayer'
- If the Parent act specifies a negative resolution the DL becomes law on the day it is laid before court.
- Scrutiny comitee
- A joint committee on statutory instruments was set up as a further check on them.
- It has members from both houses and has the power to scrutinise statutory instruments and draw the attention to Parliament to those that need special consideration.
- It is then up to Parliament to withdraw the DL or revoke any defective DL.
- A statutory instrument will refer back to P if it imposes tax on the public or exceeds the power of the act.
- A joint committee on statutory instruments was set up as a further check on them.
- Affirmative resolutions
- Control by Court
- Statutes cannot be challenged by the courts. DL is not created by Parliament, so it's validity can be challenged in the high courts.
- An individual who is personally affected by a piece of DL can apply to the courts for Judicial review.
- The individual believes that the piece of DL is 'ultra vires' = The DL body has gone beyond the powers granted by Parliament.
- The DL becomes void and ineffective if a piece of it is Ultra vires. Courts can declare DL Ultra Vires for 3 reasons;
- 1. Procedural - legal challenge through a judicial review in the High court, arguing that the DL has not followed the procedure set out in the enabling act for creating DL.
- 2. Substantive- where the content of the DL goes beyond the powers granted by the enabling act.
- 3. Unreasonableness - a furher control of the judiciary is to declare the DL ultra vires on the basis of unreasonableness.
- E.G. Roger V Swindon NHS trust.
- The DL becomes void and ineffective if a piece of it is Ultra vires. Courts can declare DL Ultra Vires for 3 reasons;
- The individual believes that the piece of DL is 'ultra vires' = The DL body has gone beyond the powers granted by Parliament.
- Why is it controlled?
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