Controls of Delegated Legislation

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Why are there Controls on DL

There are controls on DL because:

  • There are more DL made per yer year than Acts of Parliament, which has means that most legislation is not subjected to the full scrutiny of the parliamentary process.
  • Also most legislation is not made by elected bodies

Therefore, it is important that this power to make legislation is controlled and not abused, which is done in 2 ways:

  • Parliamentary Controls
  • Judicial Control
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Parliamentary Controls

Parliamentary control is maintained through: (ESANQR)

  • The Enabling Act
  • The Scrutiny Committee (Joint Committee)
  • The Affirmative Resolution Procedure
  • The Negative Resolution Procedure
  • Questioning
  • Removing the Power
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E: The Enabling Act S: The Scrutiny Committee

1) The Enabling Act

  • Control is maintained because it sets limits on the power given to bodies to make DL.
  • Only specified people are able to make law. 
  • The Enabling Act sets out:
    • how DL must be made.
    • procedures to be followed. 
  • E.g. It might say that it has to consult various interested groups

2) The Scutiny Committee (the Joint Committee):

  • This is made up of members from the HOC and the HOL.
  • It has the power to review all SIs before they become law.
  • They report any problems with it, to Parliament who can then act on it. 
  • Reasons to report a SI includes:
    • If inappropriate powers are given to other bodies.
    • If it hasn't been made according to the method set,
    • If it is confusing
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A: The ARP N: The NRP

3) The Affirmative Resolution Procedure:

  • This requires Parliament to vote their approval of SIs, within 28-40 days before it can become law.
  • E.g. The Codes of Practise issued for the Police, under the Police and Criminal Evidence Act.

4) The Negative Resolution Procedure:

  • This requires Parliament to take no action.
  • A SI will become a law after 40 days, unless a debate is requested by Parliament, or if it has been rejetced.
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Q: Questioning R: Removing the Power

5) Questioning:

  • Parliament can question responsible Ministers.
  • This can be done during debates and Question Time.

6) Removing the Power:

  • The power to legislate, from delegated bodies, can be removed by Parliament.
  • This is done by amending or repealing the Parent Act.
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The Judicial Controls

The Judicial Controls include:

  • 1) Judicial Review
  • 2) The Doctrine of ULTRA VIRES
  • 3) Declaring DL as INVALID
  • 4) Other grounds for review
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J: Judicial Review D: Doctrine of UV

1) Judicial Review:

  • Courts exercises control, through Judicial Review,
  • This occurs when Judges are asked to review the DL.
  • They decide if it is lawful.
  • E.g. This process was defined by Lord Brown in Ex Parte Vijayatunga as: 'exercise of the courts inherit power at common law to determine whether action is lawful or not.'

2) The Doctrine of ULTRA VIRES:

  • This challenges DL in courts,
  • Ultra vires= beyond the legal power or authority.
  • The 2 types of UV are:
    • Procedural UV (PUV)
    • Substantive UV (SUV)
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Procedural UV:

  • Procedural rules are set out by the Enabling Act, to be followed by the person or bodie who has the power to make DL.
  • If they are not followed, the courts can find the DL to be UV and void.
  • E.g. the Aylesbury Mushrooms company, where an order was declared to be void against mushroom growers, because the letter informing the Mushroom's Growers' Association of the new law did not comply with the requirement in the Parent Act (to consult interested parties).

Substantive UV:

  • This is where the DL goes beyond the limits set in the Parent Act, which can be declared as UV and void.
  • E.g. Customs & Excise v Cure & Deely, where the Parent Act have Commissioners the power to make laws associated with the collection of taxes. However, they made law deciding the amount of tax due when a tax return was submitted late.
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I: Declaring DL INVALID

3) Declaring DL INVALID:

  • This happens where Dl is considered as unreasonable.
  • This was established in APPH v Wednesbury Corp, where rules are considered unjust, made in bad faith or are so perverse, that no reasonable person would have made them.
  • E.g. Strickland v Hayes Borough Council, where the by law restricting singing and reciting obscene language, was unreasonable. This was because it was not restricted and was too wide.
  • E.g. 2 R v Secretary of State for Health.

4) Other grounds for review include:

  • Where the DL imposes a tax.
  • Where there is a lack of consultation before the DL was passed.
  • The legislation conflicts with EU law.
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