Controls on Delegated Legislation +/- Flashcards
Give the first effective type of parliamentary control
The Enabling Act itself. This is effective because Parliament sets out the conditions in which all 3 types of DL can be made - including who can make DL and the scope of what it can cover. If those conditions are exceeded, the DL can be declared void. Also, due to parliamentary supremacy the Enabling Act can be amended/repealed, removing the power to make DL at any time.
Discuss negative and affirmative resolutions as parliamentary controls
A less effective parliamentary control is negative resolutions. Roughly 3000 statutory instruments are created each year as if Parliament don’t block them within 40 days of the proposal of the SI, it becomes law. In practice this means that SI are not properly considered as Parliament is too busy with other matters leading to bad laws being made sometimes. However negative resolutions are a quick process meaning instruments are passed quick when needed.
Give the last effective type of parliamentary control
The Joint Select Committee who are appointed by Parliament to check proposed SI to ensure they comply with DL rules like not being allowed to raise any taxes. This is effective as all instruments are checked but the committee have limited powers and can only refer the SI to Parliament, they cannot amend or reject. Also, the members may not have necessary expertise so may miss issues as a result.
Give the first effective judicial control
The court controls DL via judicial review. There are several ways in which courts can find delegated powers have been exceeded (ultra vires) and declare the DL void. This is effective as it provides independent scrutiny of how delegated powers were used. For example, in ATB v Aylesbury Mushrooms, the procedure used before the DL was made were wrong. This is good as it stops the abuse of delegated power and leads to stopping injustice.
Discuss judges in terms of the effectiveness of the judicial review process
The judicial review process is effective because judges can hear evidence from independent experts in the field to work out if the law should be void. However, the final decision is the subjective view of the judge who isn’t elected by the public. For example, in R v Swindon NHS the judges decided the decision made by Swindon NHS was unreasonable.
Give a reason why judicial review may not be an effective control
Judicial review may not be an effective control as only someone with standing can bring a case to court, so not just anyone can sue. It is also expensive to bring a case and this person may be going against a public body with superior resources and access to better legal advice so their chance of winning is low.
Discuss the limitation of courts’ powers as a judicial control
Finally, the courts’ powers are limited, they can declare DL void but can’t change or amend it. This is bad as it means Parliament may have to reconsider the Enabling Act to appoint another body to make revised/amended DL, at public expense. However if judges could amend DL this would give significant power to an unelected body, going against Separation of Powers.
