Controls on Delegated Legislation Reading PDF

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Controls on Delegated Legislation Delegated legislation is frequently made by unelected bodies. As there are so many people with the power to create delegated legislation, it is vital that there should be some control on what they create. Control can be exercised by both Parliament and by the courts. Parliamentary Controls: Parliament has the initial control over what powers are delegated. For example, an Act will state which government minister can make regulations. It will also state the type of laws to be made and whether they can be made for the whole country or only for certain places. The Act can also set out whether the government department must consult other people before making the regulations. The parent Act will set out how the delegated legislation must be made, who it can be made by and any procedures such as consultation, that must be followed. If these procedures are not followed, the delegated legislation can be challenged. Parliament also retains control over the delegated legislation as it can repeal the powers in the enabling Act at any time. If it does this, then the right to make delegated legislation will stop. After an Act has been passed, there will need to be checks to make sure that delegated powers are not being used incorrectly. Parliament has the following ways of checking on delegated legislation:     

Affirmative resolution Negative resolution Super-affirmative resolution procedure Questions in Parliament Scrutiny committees

Affirmative Resolutions Some statutory instruments are subject to an affirmative resolution. This means that the statutory instrument will not become law unless specifically approved by Parliament. The need for an affirmative resolution will be set out in the enabling Act. One of the disadvantages of this procedure is that Parliament cannot amend the statutory instrument; it can only be approved, annulled or withdrawn by the government minister. Negative Resolutions Many statutory instruments will be subject to a negative resolution, which means that the relevant statutory instrument will be law unless rejected by Parliament within 40 days. The main disadvantage with this procedure is that, with as many as 3,000 statutory instruments made each year, there is not enough time to look at them all. Super-Affirmative Resolution Procedure

This procedure is available if delegated legislation has been made under the authority of the Legislative and Regulatory Reform Act 2006, where Parliament is given greater control. The Act gives ministers very wide powers to amend Acts of Parliament (which only Parliament itself can normally do under the principle of parliamentary sovereignty). Questions in Parliament Each government minister is responsible to Parliament for the work in their department, so they can be questioned by MPs and Lords in Parliament on their work. This can include questions about proposed regulations they intend to make. An example of this would be Nadhim Zahawi, the Secretary of State for Education, being responsible for all the work being done within the Department of Education. Scrutiny Committees The Delegated Powers Scrutiny Committee is appointed by the House of Lords to consider whether parts of any bills going through Parliament delegate legislative power incorrectly. It reports its findings to the House of Lords before the Committee stage of the bill. The Joint Select Committee on Statutory Instruments, otherwise known as the Scrutiny Committee, can also perform checks. This committee reviews all statutory instruments and, where necessary, draws the attention of both Houses of Parliament to points that need further consideration. The review is a technical one and not based on policy. The main grounds for referring a statutory instrument back to the Houses of Parliament are that:     

It imposes a tax or charge – only an elected body has a right to impose tax. It appears to have a retrospective effect that was not provided for by the enabling Act. It appears to have gone beyond the powers given under the enabling Act. It makes unusual or unexpected use of delegated powers. It is unclear or defective in some way.

The Scrutiny Committee can only report back its findings; it has no power to alter any statutory instrument. The House of Lords Delegated Powers Scrutiny Committee keeps under constant review the extent to which legislative powers are delegated by Parliament to government ministers, and examines all Bills with delegating powers which allow statutory instruments to be made before they begin their passage through the House of Lords Merits Statutory Instruments Committee. The House of Lords Merits Statutory Instruments Committee examines the policy merits of any statutory instrument or regulations that are subject to parliamentary procedure.

Effectiveness of Parliamentary Controls: With delegated legislation, it is important to remember that Parliament has the ‘ultimate’ control through removing or amending the enabling Act. This is because it holds

parliamentary sovereignty, meaning that Parliament is the supreme legal authority in the UK. Despite being the supreme legal authority in the UK, there are several limits on the effectiveness of parliamentary controls on delegated legislation. Firstly, the sheer volume of delegated legislation that is passed - around 3,500 to 4,000 per year – means that Parliamentary powers are limited as there is little time for proper scrutiny of the legislation passed. When looking at the negative resolution procedure, it offers little practical control and, in reality, is little more than a rubber stamping exercise. Whilst the affirmative resolution procedure does give Parliament a stronger role than the negative procedure, it is rarely used which suggests that it is an ineffective form delegated legislation control. The Select Committee on the Scrutiny of Delegated Powers can secure changes to pieces of legislation. However, the Committee is unable to consider the merits of delegated legislation. Instead, it can only focus on whether the delegated powers have been used correctly.

Control by the Courts: Ultra Vires Ultra vires is a phrase which means ‘beyond the powers’. If a person acts beyond their power, that is said to be ultra vires. This is the oldest, established ground of judicial review. For example, in the case of R v Home Secretary, ex parte Fire Brigades Union (1995), changes made by the Home Secretary to the Criminal Injuries Compensation Scheme were decided to have gone beyond the delegated powers given to him in the Criminal Justice Act 1988. Irrationality/Unreasonableness An unreasonable decision can also be ruled to be ultra vires. This could be relation to improper reasons within delegated legislation, such as personal bias or financial gain. This is often known as ‘Wednesbury unreasonableness’ after the case of Associated Provincial Picture Houses v Wednesbury Corporation (1948). An example is R (Rogers) v Swindon NHS Primary Care Trust (2006), when a woman with breast cancer was prescribed the nonapproved drug Herceptin. Her NHS Trust refused to provide her with the drug as it said her case was not exceptional, thought it did provide the drug for some patients in its area. This decision was decided to be unreasonable and ultra vires. Ultra Vires – Procedural Procedural ultra vires is concerned with whether the correct procedure in the enabling Act was followed. If the correct procedure is not followed, the delegated legislation can be declared ultra vires and void. This means that where a body goes beyond the power it was given to make law by not following the procedure set out in the enabling/parent Act to make that law. An example is the Aylesbury Mushroom case of 1972 when an order against mushroom growers was ultra vires because it did not allow for consultation as required by the parent Act.

Ultra Vires – Substantive Substantive ultra vires considers whether the content of the delegated legislation goes beyond the limits set out in the parent Act. This means that the body goes beyond the substance of the power it was given it make the law, such as it does something it never had the power to do in the first place. An example is Attorney General v Fulham Corporation 1921. An Act gave the Corporation the power to provide public clothes-washing facilities. The Corporation set up a commercial laundry, which included the washing of residents’ clothes. This was ultra vires as the Corporation did not have the power to set up a laundry.

Effectiveness of Court Controls Judges have the power to review delegated legislation and check that is has been made in full accordance of the law. All judicial review cases are heard in the Queen’s Bench Division of the High Court. Leave to apply (permission) has to be granted to enable a judicial review to take place, and it is only available against a public body exercising public law functions. Most applications for judicial review involve challenges to administrative decisions by government ministers, civil servants, local councils or other bodies who deal with matters of day-to-day administration. The validity of delegated (secondary) legislation can be challenged by judicial review, but primary legislation which is directly enacted by Parliament is immune from judicial review. The only reason why a piece of primary legislation may face a judicial review is if it violates a directly applicable rule of European law. Courts have little control over delegated legislation. This is because the Judicial Review relies on an individual starting a claim. This means that the courts are powerless unless somebody brings a case. People do not often bring cases as there is a lack of knowledge of the issue because of limited publicity. Another reason that the Judicial Review relies on individuals starting a claim is due to funding. The Review is rarely funded by legal aid and relies on individuals having the money, will and tenacity to pursue the case. Claimants wishing to use Judicial Review must also pass stringent legal tests (locus standi and three month time limits) before bringing a case. This ultimately excludes some people who may have a case. The nature of the enabling Acts mean that ministers are given very wide discretionary powers. This means that it is difficult for the court to reach a finding of ultra vires. Whilst there are several issues which impact the effectiveness of court controls of delegated legislation, it is important to note that Judicial Review does hold the Executive to account. This is because the government usually accepts the court’s rulings. One example of this is the rulings made about Brexit....