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control of delegated legislation

The Positive Resolution Procedure

This is where

the statutory instrument must be approved by one or both Houses of Parliament within a specified tie, usually between 28-40 days, before it can become law.

EG - Human Rights Act 1998

Negative Resolution Procedure

This is where the statutory instrument is laid before Parliament usually for 40 days. There is than a debate and a vote. If either Houses votes to pass the annulment motion, the statutory instrument does not become law.

Judicial Control

The validity of a piece of delegated legislation can be challenged in the High Court through the Judicial Review.

When delegated legislation is made beyond the power conferred by the parent/enabling Act, the delegated legislation can be declared ULTRA VIRES by the court and therefore void.

Publication

How it exercises control

The Statutory Instruments Act 1946 provides defense to someone in breach of a statutory instrument if it has not been published by Her Majesty's Stationary Office

Hence, all statutory instruments must be published in order to be fully effective.

Removing Power

Only the people or bodies specified in the Parent Act have the power to make law, and the extent of that power is also specified.

All by-laws are confirmed or approved by the relevant government minister. This should ensure that all locally made law is overseen by those with knowledge of the technical issues involved.

It is the role of the Scrutiny Committee to review statutory instruments and refer any requiring further consideration back to the House of Parliament.

The House of Lords Delegated Power Scrutiny Committee checks the enabling provision of the parent Act.

The final control is that Parliament may remove the power to legislate from the delegated person or body

There are 2 methods of control over delegated legislation:

  • Parliamentary control

  • Judicial control

Procedural Ultra Vires

Question Time

Substantive Ultra Vires

Concerned with how the delegated legislation is made.

Some parent Acts specify procedures that must be followed. An delegated legislation made without following these procedures can be declared ultra vires and therefore void.

Another form of parliamentary control is that the responsible minister can be questioned by Parliament at Question Time or during debates.

Concerned with whether the content of the delegated legislation is within the limits set out in the parent Act.

Any delegated legislation beyond these limits can be declared ultra vires and there void.

EG- Aylesbury Mushroom Case (1971)

EG - Customs and Excise Commissioners v Cure and Deeley LTD (1962)

Parliamentary Control

The initial control Parliament exercises over delegated legislation is through the limits it sets in the Parent/Enabling Act

Unreasonable

The courts may also declare the delegated legislation to be ultra vires and therefore void on the basis that it is unreasonable.

EG- R (Rogers) v Swindon NHS Trust (2006)

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