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2. Controls over Delegated Legislation
Delegated legislation is controlled in two main ways. The first is through Parliamentary
controls. This occurs at three stages, and applies to statutory instruments.
(a) A Parent Act is required to give the government minister authority to act. If there is
no Parent Act, then the minister cannot make laws. Usually the Parent Act will lay
down a procedure for consultation with various interested groups before the
statutory instrument can become law.
(b) A Scrutiny Committee, known as the Joint Committee on Statutory Instruments
and made up of members of the House of Commons and House of Lords, has the
power to review all statutory instruments before they become law. If they find
anything wrong, they can report it to Parliament, who can then act. Usually they will
report an instrument if it goes beyond the powers contained in the Parent Act, if it is
designed to operate retrospectively, or if it is confusing. The Scrutiny Committee
can only make a report: it cannot act. However, this enables MPs to question the
minister who has drafted the statutory instrument.
(c) Either an affirmative resolution or a negative resolution is needed before a
statutory instrument becomes law. Affirmative resolutions require Parliament (the
House of Commons and the House of Lords) to vote their approval of the statutory
instrument before it can become law. This is needed for example with the Codes of
Practice issued for the police under the Police and Criminal Evidence Act 1984.
Negative resolutions require no action by Parliament. Under this system a statutory
instrument will become law automatically after 40 days unless Parliament chooses to
debate and reject it.
Secondly, the courts exercise control through a process known as judicial review. This
occurs when judges are asked to review the delegated legislation and decide whether or not
it is lawful.
(a) Firstly, they can declare the delegated
legislation to be ultra vires. This means that the
body acted beyond the powers given to it in the
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Parent Act. For example, Fulham Corporation was given the power to build public
washing facilities. It built a laundry. This was ultra vires as it went beyond their
(b) The courts can also declare delegated legislation to be unreasonable. In one case
(Strickland v Hayes) it was unreasonable to ban people from using bad language in
private when the Parent Act had given councils the power to punish people singing
obscene songs generally. The power should have been limited to public places.…read more