Parliamentary Controls on Delegated Legislation including effectiveness

What are the different types of parliamentary controls on delegated legislation?

1. Approval of parent act

2. Negative resolution procedure

3. Affirmative resolution procedure

4. Scrutiny by Committees

What is approval of the Parent Act?

• Parl has initial control over the powers that are delegated, and the limits that the legislation must be within are set out in an enabling Act

• Enabling Act states:

  • which gov minister can make regulation

  • type of laws that can be made

  • whether gov department must consult other people before making regulations

• P retains control as can withdraw powers in enabling Act at any time

What is is a negative resolution procedure?

• Most stat instruments are subject to one

• the SI will become law unless rejected by parliament within 40 days of publication

• however very few are looked at due to the quantity made each year

What is an affirmative resolution procedure?

• small no. SIs subject to this

• SI won’t become law until approved by P

• If it is necessary then it will be included in enabling Act

• Disadvantage is that P can’t amend only approve or withdraw SI

What is scrutiny by committees?

• Bodies do check on SIs

  • The Scrutiny Committee (Joint Committee on Statutory Instruments)

• can only check legislation once it has been made

• can review all SIs and draw attention of P where points need further consideration

• There are various reasons for referring an SI back to P:

  • it imposes a tax or charge (only P has right to enforce that)

  • retrospective effect not provided for in enabling Act

  • gone beyond powers given under Enabling Act

  • unusual/unexpected use of powers

  • unclear or defective

What is The Delegated Powers ad Regulatory Reform Committee?

• report whether Bill provisions abuse delegated power

• considers Bills when introduced to HoL

• identifies delegations, propose, and justification for delegating it

• examines whether delegations of each bill are appropriate

• recommendations made in reports to HoL usually before committee stage

How effective are Parliamentary controls? (12 marker)

• Scrutiny by committee effective as can check numerous SIs but can’t thoroughly check all of them

  • also only have power to report findings to HoC and can’t alter them - review only technical so can’t do anything to stop them becoming law either

• ARP leads to some parliamentary debate and usually used for V important and controversial matters

  • but is time consuming and needs time allocation for debate

  • if there’s a dispute gov will usually win vote due to majority

  • P can’t amend only approve or withdraw

• likely that only few SIs with NRP will be looked at in detail

  • so has limited effect as most legislation not challenged and becomes law, could have flaws

  • but members of either house can raise objections

• Delegated powers and regulatory reform committee is effective as inappropriate enabling provisions are brought to attention of house before committee stage

  • effective as means that if enabling provisions are made appropriately then legislation made under it is more likely to be appropriate