Discuss the effectiveness of parliamentary and judicial controls over delegated legislation.

SIs are a form of legislation, often drafted by the legal office of the Government Department concerned, allowing the provisions of an Act of Parliament to be brought into force or altered without Parliament passing a new Act.

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Statutory Instruments are a form of legislation, usually drafted by the legal office of the Government Department concerned, allowing the provisions of an Act of Parliament to be brought into force or altered without the need for Parliament to pass a new Act. SIs are also referred to as secondary,delegated or subordinate legislation.


This question is about the controls exercised by Parliament and the courts over delegated legislation. Delegated legislation, or secondary legislation, is quite simply legislation which is made by a body other than Parliament but with the permission of Parliament. The majority of delegated legislation is in the form of statutory instruments but it can also include Rules or Codes of Practice. Delegated legislation can relate to technical changes in an Act, such as amending the level of fees to be paid for a public service or can be used to add more detail to an Act.

 

When we examine parliamentary controls we are immediately struck by the fact that such controls are rather limited. What possible reason is there for this? Probably one factor is that each of the bodies to whom the power to make delegated legislation is granted could be said to come within the control of Parliament in any event. This being the case it could be said that each of the bodies is, to a certain extent, already acting with the authority of Parliament. There would be little to stop Parliament from intervening and changing the arrangement in the event that Parliament were concerned about how this delegated authority was being exercised.

 

The manner in which the power is delegated is by way of a parent or enabling Act. The parent or enabling Act, as the name suggests, sets out the key provisions. It enables those provisions to be brought into effect with sufficient detail by allowing the necessary rules and regulations anticipated by the Act, to come about later through delegated legislation. On the face of it the bodies charged with introducing this secondary legislation have full authority to act, but in reality Parliament has limited the powers.

 

This limitation is done by the enabling Act setting parameters. The enabling Act therefore sets out the authority for and the scope of the delegated legislation. In the case of statutory instruments for example, these are introduced by government ministers under the parent Act, Parliament, through the use of these parameters, controls the powers exercisable by government ministers. The delegated legislation takes its authority and justification for its existence from the enabling Act.

 

Certain Parliamentary procedures apply to delegated legislation in the form of statutory instruments introduced to Parliament. These include affirmative, negative and super affirmative resolutions.

 

Affirmative resolutions require a parliamentary vote and both Houses of Parliament must approve them. To this extent it could be argued that Parliament control exists and that this includes an opportunity for the proposed legislation to come to the attention of members. The parent Act will stipulate the occasions when a vote is required. However, in practice, very few statutory instruments are introduced in this way and the majority are subject only to the negative resolution procedure.

 

The effect of the negative procedure is that the the SI will become law within 40 days unless a debate is requested by an MP. Therefore most SIs do not receive the benefit of a debate and because of this low level of control and scrutiny it could be said that Parliamentary control of this form of delegated legislation is limited as, in both cases, Parliament can accept or reject an SI but is unable to amend it.

 

On the other hand, in the case of legislation which is subject to super affirmative resolution, other restrictions in addition to a vote apply, and these include that the SI must have regard to representations made by parties consulted over the SI.

 

MPs have the opportunity to question the appropriate minister about delegated legislation. This is under the principle of accountability to Parliament by a minister. Some matters are more politically sensitive than others and it may be that more obviously politically sensitive matters are the subject of questions whereas areas which are less in the public eye may not receive attention.

 

The House of Lords has two committees which complement each other and keep a watchful eye on delegated legislation:

 

The Delegated Powers and Regulatory Reform Committee looks at the proposals in Bills that give Ministers the power to make Statutory Instruments.

 

The Secondary Legislation Scrutiny Committee looks at the policy merits of any statutory instruments or regulations which come before the House of Lords and that are subject to parliamentary procedure.

 

The Joint Committee on Statutory Instruments consists of members from both the House of Lords and the House of Commons and looks at whether or not the statutory instrument complies with the legal requirements of the parent Act. It is not concerned with the policy only the legal compliance. It has no power to alter proposed legislation and can only refer back on certain technical matters. A technical matter might be that the legislation imposes a tax which it is not allowed to or if the statutory instrument is producing legislation which is capable of taking effect retrospectively or which is unclear and not provided for by the enabling Act. Such technical matters, whilst important constitutionally do not relate to the subject matter and is further evidence that Parliamentary control of Sis is limited in scope.

Judicial review or judicial control is exercised by the Queen's Bench Divisional Court which exercises supervisory powers over the decisions of government ministers. This function demonstrates the importance of the independence of the judiciary as government ministers are an arm of the state and it is important that individuals feel that their dispute has been impartially dealt with.

 

Such calls for judicial review have probably grown in importance in recent years and there will no doubt be numerous examples of instances where the judiciary have ruled against a government minister.

 

However this does not alter the fact that such claims are brought by individuals and therefore such controls cannot be said to be uniform in the sense that judges are not able to review secondary legislation as part of their role. On the contrary they only have scope to review legislation which is brought to their attention by proceedings of judicial review which are special to that dispute or claim.

 

There is one limitation of judicial review in that such proceedings must be brought before the Divisional Court in order for them to review any delegated legislation. This is dependent upon an individual being able to finance such a claim.

 

In addition such claims may be affected by a lack of awareness or lack of knowledge due to the sheer volume of delegated legislation passed each year. The fact that a claim has not been brought before the courts is no indicator that such secondary legislation is without defect but more to do with the difficulties of successfully financing and bringing such a claim to court.

 

In the event that the Divisional Court finds that delegated legislation is wanting for being substantive ultra vires, i.e it has exceeded its powers and placed provisions on an area over which the parent act had not empowered it, the court can make an order accordingly and void the legislation.

 

R v Wood (1855): Minister for Health created an SI that would force all people to clear snow off their own paths, on the pretext that it was an “unhygienic substance”. The power covered the removal of dust, ashes, and rubbish – but it was held that this could not include snow and the SI was declared substantive ultra vires and beyond the powers of the Minister.

 

Attorney General v. Fulham Corporation (1921): Under the Baths and Wash-houses Acts 1846-78 councils had the power to provide facilities for the poor to wash themselves and do their own washing. Fulham Corporation set up washing facilities but charged the local residents. The court ruled that this action was substantive ultra vires as the corporation had gone beyond the power delegated to them.

 

Delegated legislation can also be declared ultra vires for the reason that the correct procedures were not followed (procedural ultra vires). An example is the case of Aylesbury Mushrooms (1972) which was declared procedurally ultra vires as the relevant minister had not followed the correct procedures concerning consultations. So, as well as substantive ultra vires for exceeding their powers there is also procedural ultra vires.

 

Whilst this is clearly effective in one way the effect of such an order is to make the legislation completely ineffective. The court cannot make an order substituting or second guessing what the minister should have done. This means that new legislation will have to be made following correct procedures and complying with any parameters set by the enabling Act. To this extent this causes ministers and Parliament more work, whereas if the problem had been picked up during the resolution stage this may have been more effective in terms of time. This was illustrated by the case of R v Home Secretary, ex parte Fire Brigade union (1995) when it was decided that changes to the Criminal Injuries Compensation Scheme by the Home Secretary exceeded the powers granted under the Criminal Justice Act 1988 and were declared ultra vires.

 

 

Finally it needs to be pointed out that whilst the parameters set by the enabling Act form a limitation or control by Parliament in that Parliament passed the original Act, the modern trend is to draw up broad enabling powers. The effect of such methods is to give ministers in turn wide powers but also to make it more difficult to successfully claim under judicial review proceedings on the basis that the secondary legislation was not permitted under the enabling Act or that the minister has exceeded their powers (ultra vires). Are such wide powers there as a result of the will of Parliament or are they more to do with the skills of Parliamentary draughtsmen?

 

(Word count 1621)

 

Summary of Parliamentary and Judicial controls over delegated legislation.

 

Parliamentary controls

 

  • The parent or enabling Act sets out parameters. The enabling Act therefore sets out the authority for and the scope of the delegated legislation

 

  • Resolution procedures -

 

Affirmative - require a parliamentary vote and both Houses of Parliament must approve them.

 

Negative - the SI will become law within 40 days unless a debate is requested by an MP.

 

Super Affirmative - other restrictions in addition to a vote apply, and these include that the SI must have regard to representations made by parties consulted over the SI.

 

  • Scrutiny Committees -

 

The Delegated Powers and Regulatory Reform Committee looks at the proposals in Bills that give Ministers the power to make Statutory Instruments.

The Secondary Legislation Scrutiny Committee looks at the policy merits of any statutory instruments or regulations which come before the House of Lords and that are subject to parliamentary procedure.

The Joint Committee on Statutory Instruments consists of members from both the House of Lords and the House of Commons and looks at whether or not the statutory instrument complies with the legal requirements of the parent Act. It is not concerned with the policy only the legal compliance.

Judicial control

 

  • Exercised by the Queen's Bench Divisional Court and dependent upon an individual being able to finance such a claim.

 

Delegated legislation can be deemed “ultra vires” or “beyond their powers” and therefore void.

 

  • Substantive ultra vires, i.e it has exceeded its powers and placed provisions on an area over which the parent act had not empowered it, the court can make an order accordingly and void the legislation.

 

R v Wood (1855),

Attorney General v. Fulham Corporation, (1921).

 

  • Procedural ultra vires i.e the correct procedures were not followed.

 

Aylesbury Mushrooms (1972).

 

Does the delegated legislation exceed the powers given in the parent Act?

Is the Delegated legislation irrational or unreasonable?

Has there been a fault in the procedure in the way the delegated legislation was made?



 

 

Lords Committee publishes Report on two Statutory Instruments relevant to "fracking"

Ultra Vires

Delegated Legislation

 

 

 

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