Control of Delegated Legislation

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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.
      • 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.
      • 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.
    • 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.

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