Controlling Delegated Legislation

There are 3 main controls on Delegated Legislation - Initial, Parliamentary and Judicial controls. Here is a summary of them, and the limits on them.

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Initial Controls

  • Consultation
    • Experts are usually consulted before the Delegated Legislation is passed therefore technical details should be okay.
  • Publication
    • All Delegated Legislation is available for public scrutiny.

Limits of Initial Controls.

  • There is too much Delegated Legislation
    • 3000 Statutory Instruments alone are made each year.
  • Few people look up, and read the Delegated Legislation.
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Parliamentary Controls

  • Enabling Act
  • Affirmative resolutions
    • Parliament has to specifically approve an SI before it is accepted as law.
  • Negative Resolutions
    • An SI will become law unless rejected by Parliament within 40 days.
  • Delegated Powers Scrutiny Committee
    • Looks at the Enabling Act
  • Scrutiny Committee
    • Is a law unclear, retrospective, ultra vires, or imposing a tax?

Limits on Parliamentary Controls

  • Enabling Acts are often too broad for Parliament to stop something they dislike.
  • Negative/Affirmative resolutions are good, yet only allow Parliament to accept or deny a law, as opposed to amend it.
  • Scrutiny Committee can not amend laws, and can only refer back to Parliament.
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Judicial Review

Judicial Review looks at whether a law is beyond its power - Ultra vires.

  • Substantive Ultra Vires
    • The Enabling Act didn't give them the power to pass that specific Delegated Legislation.
    • Strickland vs. Hayes Borough Council - he Council tried to ban swearing.
  • Procedural Ultra Vires
    • There's a problem with the way the DL was made.
    • Aylesbury Mushroom Case - They didn't consult with Mushroom farmers.

Limits on Judicial Review

  • Judicial Review depends on an individual starting a case.
    • Unlikely as there is too much Delegated Legislation to keep track of and people don't want to go to court.
  • It's difficult for a law to be ultra vires as Enabling Acts are often so broad.
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Comments

Natalie Beard

Another perfect resource :)

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