Delegated Legislation Controls

Delegated legislation

Delegated legislation is law made by some person or body other than Parliament, but with the authority of Parliament. The authority to make law outside of Parliament is usually laid down in a ‘parent’ Act of Parliament sometimes known as an enabling Act.

Approval of the Parent Act (Enabling Act)

Sets boundaries for delegated powers (who can make law, procedure, subject matter). Parliament can repeal/amend the enabling Act at any time.

Affirmative Resolution

Certain statutory instruments must be approved by Parliament before becoming law.

Stronger control, but time-consuming.

Negative Resolution

Most common control - SIs become law unless rejected within 40 days.

Weak in practice as rarely debated.

Scrutiny Committee (Joint Committee on Statutory Instruments)

Reviews SIs and flags technical issues (ultra vires, defective drafting).

Cannot alter/reject, only draw attention.

Judicial Controls - Judicial Review of Ultra Vires (beyond powers)

Delegated legislation can be declared void by the courts if it goes beyond the powers in the enabling Act.

Judicial Controls - Substantive Ultra Vires

Law goes beyond what Parliament authorised. Fire Brigades Union 1995 - changes went beyond the delegated powers in the Criminal Injuries Compensation Scheme.

Judicial Controls - Procedural Ultra Vires

Correct procedure not followed.

Aylesbury Mushroom Case

Judicial Control - Wednesbury unreasonableness

Delegated law so unreasonable that no reasonable body would have made it.

Swindon NHS Trust 2006 - policy refusing a cancer drug except in “exceptional circumstances” was unreasonable as it wasn’t given to a woman with breast cancer despite patients being given it in her area.