Essay: Delegated Legislation

Delegated legislation is where a specific element of an existing Act of Parliament can be amended by particular parties such as; Government Ministers, local authorities and the Queen and Privy Council. These parties are granted power to make changes to current laws through enabling/parent Acts. The enabling/parent Acts sets out the parameters of which the parties must adhere to. An example of an enabling Act is the Health Act 2007 of which allowed the Government Minister to update the law and ban smoking in specific public areas. Being able to delegate power allows Parliament to save time and focus on other matters as according to Parliament.uk there are approximately 3000 Statutory Instuments of which Parliament couldn’t possibly apply themselves to due to a lack of available time. Also, delegation to local authorities allows for laws to be made in consideration of the local area’s needs as using local and specialist expertise means that the needs will be fulfilled as they’ll have much more knowledge of specific issues affecting the area of which Parliament won’t.
However, the parameters set out are not always followed of which means that the parties’ amendments are ultra vires (they have gone beyond their power) and therefore shouldn’t stand. As a result, there are Parliamentary and judicial controls in place to try to prevent an abuse of power from occurring.
Firstly, there are Parliamentary controls of which are directly enforced by members of Parliament. The controls put in place are; the authority to amend or repeal the enabling Act, the requirement for all Statutory Instruments to go through affirmative or negative resolution, the creation of the joint-select committee and the publishment of all Statutory Instruments.
Having the authority to amend or repeal enabling Acts allows Parliament to increase or decrease the amount of power that they delegate. The advantages to this are that if the delegated parties are abusing their power then the power granted can be taken away completely or reduced and scrutinised closer.
In addition, affirmative resolution requires that the Statutory Instrument is approved by both Houses of Parliament before becoming a law. This allows for the instrument to be scrutinised closely by many people and therefore means that it is much more difficult for an ultra vires instrument to become law. However, due to both Houses of Parliament having to approve the instrument it can cause difficulties because if one House passes but the other does not then it cannot become a law and must be amended to suit the disagreeing House all while still pleasing the approved House.
A further control is negative resolution. This is similar to affirmative resolution as it is also a control for Statutory Instrument’s, however, negative resolution does not require approval from either House of Parliament but instead automatically becomes a law unless it is rejected within 40 days of being laid down in Parliament. An advantage of this is that the Government Minister’s don’t have to wait for both House’s to approve the law of which means that the law can be created quickly as it is probably quicker to wait the 40 days opposed to waiting for both House’s to approve. However, as the instruments do not require approval this means that ultra vires law can be passed as it won’t have been checked by either House.
Another Parliamentary control is the formation of the Joint-Select Committee for Statutory Instruments, the committee is made up of members from both Houses of Parliament and is set with the task of scrutinising Statutory Instruments that are to be laid before Parliament. The committee itself has no power to amend the Statutory Instrument but is empowered to as Martin (2015) states “draw the attention of both Houses of Parliament to points that need further consideration.” The further consideration is likely to be because the committee feels that the Instrument has exceeded the powers granted by the Act of Parliament. The House’s then have to choose whether or not to act on the suggestions made by the committee as only they have the power to amend the Instrument. An advantage of the scrutiny committee is that it ensures that the parameters set out by enabling Act are not exceeded. However, the committee cannot scrutinise all Instruments as the volume is great and they don’t have time or resources to check all of them therefore Instruments become law without being checked even if they’re ultra vires.
Moreover, the process of creating Statutory Instruments is governed by the Statutory Instruments Act 1946. This Act requires that all Statutory Instruments are publicised otherwise, as Mitchell & Dadhania state “a person will have a defence to a breach of delegated legislation if the Statutory Instruments have not been printed.” Due to the publication of Instruments it makes the law much more accessible and means that everyone can make themselves aware of the laws being made.
Secondly, there is a judicial control of which is judicial review. This allows the courts to challenge the delegated legislation on any of the following grounds; procedure ultra vires, substantive ultra vires or unreasonableness.
Procedure ultra vires is where the delegated legislation has not followed the procedure set out in the enabling Act. An example of this is the Aylesbury Mushroom Case where the enabling Act required all farmers to be made aware of the new regulations, however, the mushroom farmers were not consulted and therefore the procedure was not followed as the Act stated that all farmers must be consulted.
In addition, substantive ultra vires is where the substance/ power granted by the enabling Act has been exceeded. An example of this is Customs & Excise Vs Cure & Deeley where the enabling Act allowed the commissioners to collect tax, however, the commissioners were setting the amount of tax of which they were not empowered to do.
Furthermore, according to Elliot C & Quinn F (2015) unreasonableness is “if rules are manifestly unjust, have been made in bad faith or otherwise are so perverse that no reasonable official could have made them.” This was shown in the case Rogers Vs Swindon NHS where the refusal to prescribe life prolonging treatment for financial reasons was deemed to be unjust.
An advantage of judicial review is that anyone who is affected by the delegated legislation can call for a judicial review of which will determine whether or not the legislation is appropriate or if the court needs to void it. A further advantage is that this decision is made by legal experts of whom are not connected to Parliament and therefore can make a fair and knowledgeable judgement. However, it is expensive to take the legislation to court therefore many people cannot take the legislation to court even if they are in the right as they simply can’t afford to of which means that bad legislation may not be looked in to.
In conclusion, I think that both parliamentary and judicial controls are effective to an extent as they prevent ultra vires from occurring. However, a lot of delegated legislation may not be checked by the parliamentary controls due to the sheer volume that is passed and current controls such as the scrutiny committee are unable to cope with this. As a result I would suggest that there needs to be a new control that is much more efficient or that the amount of legislation passed is regulated and possibly capped so that the legislation can be checked. Also, the committee can only report concerns back to Parliament and it can therefore make the process longer than it needs to be. I would suggest that the committee is granted power to amend the Instrument as it would make the committee much more efficient and save Parliament time.