Controls on delegated legislation Flashcards
(24 cards)
What are the 2 controls on delegated legislation?
Parliamentary control and judicial control.
What is the Enabling Act?
Primary legislation that gives government ministers authority to make delegated legislation.
What are the key features of the Enabling Act?
It sets out the:
Scope of the powers delegated
Procedures to be followed
Limits to prevent misuse of power
What is the affirmative resolution procedure?
A control on delegated legislation that requires the approval of both houses of parliament within 40 days.
What are advantages of the affirmative resolution procedure?
Allows parliament to debate and vote on delegated legislation
Allows proper scrutiny of important issues
What are disadvantages of the affirmative resolution procedure?
Time-consuming procedure
Only applies if set out in the Enabling Act and most SI’s are not subject to it
What is the negative resolution procedure?
When a draft order is laid before parliament for 40 days and if there are no objections, it becomes law.
What are advantages of the negative resolution procedure?
It is quick
MPs can still raise objections
What are disadvantages of the negative resolution procedure?
Most SIs become law without debate
Poor or unfair SIs may go unnoticed
What is the joint committee on statutory instruments?
A parliamentary committee that reviews SI’s to ensure they are legally and procedurally correct.
What are advantages of the joint committee on statutory instruments?
Allows for detailed scrutiny of delegated legislation
It should detect SI’s that are unclear or defective
What are disadvantages of the joint committee on statutory instruments?
Can’t consider merits – only technicalities
Can’t amend – can only report issues to Parliament
What are the different parliamentary controls on delegated legislation?
The Enabling Act
Affirmative resolution procedure
Negative resolution procedure
The joint committee on statutory instruments
What is judicial review?
When courts examine if government decisions are legal and fair.
If decisions aren’t legal and fair, it is said to be ultra vires and will be made void.
What does ultra vires mean?
‘Beyond one’s powers’.
What are the 3 types of ultra vires?
Substantive ultra vires
Procedural ultra vires
Unreasonable ultra vires
What is substantive ultra vires?
When the delegated legislation goes beyond the powers set out in the Enabling Act.
What is an example of substantive ultra vires?
R v Home Secretary, ex parte Fire Brigades Union.
What is procedural ultra vires?
When the correct procedure for making the delegated legislation has not been followed.
What is an example of procedural ultra vires?
The Aylesbury mushrooms case.
What is unreasonable ultra vires?
When the delegated legislation is said to be ultra vires on the grounds that it is unreasonable.
What is an example of unreasonable ultra vires?
Strickland v Hayes Borough council.
What are advantages of judicial review?
Allows individuals to object to unfair treatment and hold the government to account.
What are disadvantages of judicial review?
It can only happen if a person is well advised to bring a case, or if they can afford it.
