Control of Delegated Legislation

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  • Created on: 04-12-18 20:55

Affirmative resolution

A parliamentary control.

Where the Statutory Instrument has to be laid out before both House of Parliament and they both must expressly approve the measure. When used, this is an effective control. 

A statutory instrument is usually agreed without a debate or vote, but opposition MPs can force either if they are so minded. If both Houses do not indicate their backing for the instrument, it cannot not become law. 

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Negative resolution

A Parliamentary control. 

Where the Statutory Instrument is published but no debate or vote takes place. May be annulled by a resolution of either House of Parliament. 

About 2/3 SIs are passed via negative resolution and therefore are not actually considered before Parliament. They merely become law on a future specified date and so afford limited control over the delegated authority.

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Super-affirmative procedure

A Parliamentary control. 

Sometimes required to oversee legislative reform orders issued under the Legislative and Regulatory Reform Act 2006.

Provides Parliament with more power to scrutinise the proposed delegated legislation. Reports must be produced and each House of Parliament must expressly approve the order before it can be made. 

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Consultation

A Parliamentary control.

Many enabling Acts require consultation with interested parties or those who will be affected by the delegated legislation. 

An effective control but not all enabling Acts require consultation, which limits its usefulness.

The enabling Act itself is a form of control as it sets the paramenters and procedures for the delegated power. 

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Joint Committees on Statutory Instruments (JCSI)

A Parliamentary control.

All SIs subject to review by JCSI - reports to House of Commons or House of Lords on any SI it identifies as needing special consideration and could cause problems. 

Its control is limited as it can only make recommendations to the Houses rather than compel them to take on board their suggestions. 

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Judicial Controls

A SI can be challenged by someone who has been directly affected by the law. 

The process for challenge is called judicial review and takes place in the Queen's Bench Division of the High Court. 

The person making the challenge asks the judge to review the legislation and decide whether it is ultra vires. If so, the delegated legislation will be declared void. 

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Procedural ultra vires

judicial control. 

Where the procedures laid down in the enabling Act for making the SI are not followed - e.g. consultation was required but not carried out.

Example: Agricultural Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd (1972)

The enabling Act required interested parties to be consulted - they were not, and so the delegated legislation was declared procedurally ultra vires, and therefore void. 

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Substantive ultra vires

A judicial control.

Where the delegated legislation goes beyond what Parliament intended.

Example: Customs and Excise v Cure and Deeley Ltd (1962)

The Customs and Excise Commissioners tried to impose tax and decide the amount to be collected but this went beyond the power conferred by Parliament. 

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Unreasonableness

judicial control. 

Can be challenged as unreasonable if the person making it has taken into account matters which they shouldn't have done or not taken into account matters they should have done. 

Even if the test is passed, it still needs to be proved that it is a decision no reasonable body could come to.

Example: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1947)

A cineam was allowed to open on Sunday, but its licence barred under 15s attending. The cinema challenged saying it was unreasonable, but the courts disagreed. 

Also known as Wednesbury Unreasonableness. 

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