Controlling Delegated Legislation: Courts and Parliament

Delegated Legislation: Types and Controls

Delegated legislation plays a crucial role in the English legal system, allowing for the efficient implementation of laws by government officials rather than Parliament. However, to ensure accountability and legality, controls must be in place to oversee the process. Both the courts and Parliament have mechanisms to control delegated legislation, with each providing different means of scrutiny and accountability. This essay will outline the various types of delegated legislation and assess the effectiveness of the controls that may be applied to it.

Types of Delegated Legislation

Orders in Council: Orders in Council are created by the Queen and the Privy Council. They are often used in emergency situations, such as those outlined in the Civil Contingencies Act 2004. Orders in Council can give legal effect to European Directives, bring acts into force, and transfer responsibilities between government departments.

Statutory Instruments: Statutory instruments are made by government ministers and amount to over 3000 each year. The Legislative and Regulatory Reform Act 2006 (LARRA 2006) provides a framework for the creation of statutory instruments.

Bylaws: Bylaws are regulations created by local authorities and public corporations. These regulations pertain to specific areas within their jurisdiction and are used to address local needs.

Controls on Delegated Legislation

Controlled by Parliament: Parliament exercises control over delegated legislation through various means, including consultation, repeal, scrutiny committees, and resolutions. Consultation allows stakeholders and the public to provide input on proposed delegated legislation. Repeal gives Parliament the power to revoke delegated legislation. Scrutiny committees review proposed delegated legislation to ensure it aligns with parliamentary intent. Resolutions can be affirmative or negative; affirmatives require explicit approval from Parliament, while negatives allow delegated legislation to become law unless explicitly rejected.

Judicial Control: The courts also provide a check on delegated legislation through mechanisms such as judicial review, locus standi, substantive ultra vires, procedural ultra vires, and unreasonableness. Cases like Ex p Fire Brigades Union (1995), Aylesbury Mushrooms (1972), and Strickland v Hayes BC (1896) have established principles by which courts can assess the legality and validity of delegated legislation.

Assessment of Controls

The effectiveness of controls on delegated legislation can vary. While mechanisms such as consultation, repeal, and scrutiny committees can provide oversight, they may not always be sufficient. Consultation processes may lack transparency, and repeal does not address the underlying issues if flawed delegated legislation remains in place. Scrutiny committees may not have the capacity to review all delegated legislation effectively, leading to potential loopholes.

Affirmative resolutions are infrequent and can be time💥consuming, while negative resolutions may allow delegated legislation to pass without thorough scrutiny. Judicial review, while an important control mechanism, can be complex and costly for individuals or organizations to pursue.

In conclusion, the controls applied to delegated legislation by both Parliament and the courts play a critical role in ensuring accountability and legality. However, there are limitations to these controls, including the potential for insufficient scrutiny, lack of transparency, and challenges in accessing judicial review. Further reforms may be necessary to enhance the effectiveness of controls over delegated legislation in the English legal system.