W/E 19th October 2007
This week we looked at the control of delegated legislation. There are three areas of control: the courts; parliament; and inquiry. Public inquiry tends only to be used in relation to planning matters. The two main mechanisms of control are the courts and parliament itself.
Parliament’s control is limited and is in the main exercised through the parent act, which sets out the provisions relating to the delegated legislation. A small number of SI require an affirmative resolution, which means the SI will not become law unless specifically approved by parliament. Otherwise SI are subject to negative resolutions, which means that the SI automatically becomes law unless it is rejected by parliament within forty days. The other parliamentary control on DL is the scrutiny committee (formed in 1973). It will refer DL back to parliament if:
- it imposes a tax or charge,
- it is retrospective,
- goes beyond the power of the parent act,
- it is unclear or defective.
The other main control of DL is by the courts. DL can be challenged in the courts on the grounds that it is ultra vires. This is done under the judicial review procedure.
If DL is ruled to be ultra vires it is void and not effective (see R v Home Secretary ex parte Fire Brigade Union, 1995). The courts presume that unless the parent act expressly allows it DL cannot :-
- make unreasonable regulations
- impose taxes
- allow sub-delegation
(see Strictland v Hayes Burgh Council, 1896)
For further reading in this area, see Aylesbury Mushroom Case, 1972; and R v the Secretary of State ex parte National Union of Teachers, 2000.
Of course, SI can also be declared void if they conflict with EU legislation.
We also examined the various criticisms of delegated legislation, being that unelected civil servants can make law.
Additional Reading
- http://www.dca.gov.uk/ – Dept for Constitutional Affairs
- http://www.homeoffice.gov.uk/ – Home Office
- http://www.hmso.gov.uk/ – for Acts of Parliament
- http://www.parliament.uk/
- http://www.europa.eu.int/ – European Commission Website
- www.law.com/uk – Legal website for students
- http://www.lawteacher.net/ – The English Law website of Asif Tufal
- http://www.thetimes.co.uk/ – The Times
- http://www.guardian.co.uk/ – The Guardian
- “English Legal System” (7th ed.) by C Elliot and F Quinn
- “Cases and Materials on the English Legal System” (9th ed.) by M Zander
