Controlling Delegated Legislation

Delegated Legislation: Ways of Control

Delegated legislation plays a significant role in the English legal system, allowing for the delegation of lawmaking powers from Parliament to other bodies. However, this delegation of power must be subject to control mechanisms to ensure accountability and legitimacy. There are several ways in which delegated legislation is controlled, including parliamentary controls and judicial review.

Parliamentary Controls

Pre💥drafting Consultation: Before delegated legislation is enacted, there is often a requirement for pre💥drafting consultation with relevant stakeholders. This ensures that the views and interests of those affected by the legislation are taken into consideration. The case of Aylesbury Mushroom (1972) highlighted the importance of consultation in ensuring the legitimacy of delegated legislation.

Repeal of Enabling Act: Parliament has the power to repeal or amend the enabling act that grants the authority for delegated legislation to be made. This serves as a crucial form of control over delegated legislation, as it allows Parliament to revoke delegated powers if they are misused or no longer deemed necessary.

Delegated Powers Scrutiny Committee: This committee is tasked with scrutinizing delegated legislation to ensure that it falls within the boundaries of the powers granted by Parliament. The committee can recommend changes or reject delegated legislation that exceeds its delegated powers.

Affirmative Resolution: Some forms of delegated legislation require an affirmative resolution from Parliament before they can come into force. This means that Parliament must actively approve the legislation, providing an opportunity for scrutiny and control.

Negative Resolution: Other forms of delegated legislation are subject to negative resolution, where they automatically become law unless objections are raised by Parliament. This mechanism allows for a level of control over delegated legislation without requiring active approval from Parliament.

Scrutiny Committee: In addition to the Delegated Powers Scrutiny Committee, there are other parliamentary committees tasked with scrutinizing delegated legislation. These committees play a vital role in ensuring that delegated legislation is lawful, reasonable, and in line with Parliament's intentions.

Publicity: Delegated legislation must be published and made available to the public to ensure transparency and accountability. This allows for scrutiny by interested parties and helps to prevent abuse of delegated powers.

Judicial Review

Substantive Ultra Vires: Judicial review can be sought to challenge delegated legislation that exceeds the powers granted by Parliament. Cases such as R v Home Secretary ex parte Fire Brigades Union (1995) and Secretary of State for Education ex parte NUT (2000) have established the grounds for challenging delegated legislation on substantive ultra vires grounds.

Procedural Ultra Vires: Delegated legislation can also be challenged on procedural grounds, such as failure to follow the correct procedures in making the legislation. The case of Aylesbury Mushroom (1972) exemplifies the importance of adhering to procedural requirements in the enactment of delegated legislation.

Unreasonableness: Judicial review can also be sought on the grounds of unreasonableness, where delegated legislation is considered to be irrational or arbitrary. The case of Strickland v Hayes Borough Council (1896) set out the test for determining whether delegated legislation is unreasonable.

In conclusion, delegated legislation is subject to various control mechanisms, including parliamentary controls and judicial review, to ensure that it is lawful, legitimate, and in line with parliamentary intentions. These controls aim to maintain the balance of power between Parliament and delegated authorities, safeguarding the rule of law and the rights of individuals.