Control of delegated legislation, advantages and disadvantages

Welcome to the Control of Delegated Legislation

In our previous look at the types of delegated legislation (Orders in Council, Statutory Instruments, and Bylaws), we saw that Parliament often gives its law-making power away to others, like Government Ministers or Local Councils. But wait—if Parliament is the only body we actually elect to make laws, isn't it a bit dangerous to let others do it?

That is exactly why we have controls. In this chapter, we will explore how the courts and Parliament keep a "leash" on these law-making powers. We will also weigh up the advantages and disadvantages of this system. Don't worry if it sounds technical; think of it as a system of checks and balances to make sure no one person becomes too powerful!

1. How Parliament Controls Delegated Legislation

Since Parliament gives the power away, they have the right to supervise how it is used. They do this in several ways:

The Parent Act (The Enabling Act)

This is the most important control. Parliament passes an initial Act (the Parent Act) which sets out the limits of the power. It specifies who can make the law, what they can make law about, and how they must do it. If the Parent Act is written strictly, it limits the chance of the power being abused.

Scrutiny Committees

There are special groups of MPs and Lords, such as the Joint Committee on Statutory Instruments, who review every single Statutory Instrument. They don't look at the policy (whether the law is a "good idea"), but they check the "technical" side. For example, they check if the law imposes a tax (which only Parliament should do) or if it goes beyond the powers given in the Parent Act.

Resolution Procedures

Parliament uses two main "voting" methods to check Statutory Instruments:

• Negative Resolution: The law will automatically become valid unless Parliament rejects it within 40 days. This is common because it saves time.
• Affirmative Resolution: The law will not become valid unless Parliament specifically votes to approve it. This is used for more important or controversial laws.

Quick Tip: Think of a Negative Resolution like a "silence means yes" rule, and an Affirmative Resolution like a "you must ask permission" rule.

2. How the Courts Control Delegated Legislation (Judicial Control)

The courts can challenge delegated legislation through a process called Judicial Review. A person who is personally affected by the law can ask a judge to declare the legislation void (invalid).

The main legal term you need to know here is ultra vires, which is Latin for "beyond the powers." There are three ways a law can be ultra vires:

Procedural Ultra Vires

This happens when the person making the law failed to follow the steps laid out in the Parent Act. For example, if the Parent Act says a Minister must consult with a specific group of experts before making a law, and they forget to do it, the law is procedurally ultra vires and will be struck down by the court.

Substantive Ultra Vires

This happens when the content of the law goes beyond what the Parent Act allowed. If a Parent Act gives a Minister power to make rules about "public transport," and the Minister tries to make a law about "private cars," they have gone beyond their substantive power.

Unreasonableness

Courts can also strike down a law if it is so "unreasonable" that no sensible person would have ever made it. This is sometimes called "Wednesbury unreasonableness."

3. The Legislative and Regulatory Reform Act 2006

This specific Act is a special control mechanism. It gives Ministers the power to make "Orders" to remove "burdens" (like outdated or over-complicated rules) from old legislation.

Because this gives Ministers a lot of power to change existing Acts of Parliament, the Legislative and Regulatory Reform Act 2006 includes strict safeguards:

• Ministers must consult with interested parties before making an Order.
• They must show that the change does not remove any necessary protection or prevent a person from continuing to exercise a right or liberty.
• Parliamentary committees have the power to "veto" (block) these Orders if they think the Minister is overstepping.

Key Takeaway: Controls exist to ensure that delegated legislation remains democratic and follows the rule of law.

4. Advantages of Delegated Legislation

Why do we bother with delegated legislation if it needs so much controlling? There are four main reasons:

1. Saves Parliamentary Time: Parliament is extremely busy. If they had to debate every tiny rule (like the size of a fishing net or the speed limit on a specific road), they would never have time for big issues like healthcare or the economy.
2. Expert Knowledge: Ministers and their departments have specialized knowledge that MPs might not have. For example, it makes more sense for the Department of Transport to write detailed technical rules about aviation safety than for 650 general MPs to do it.
3. Flexibility and Speed: In an emergency, an Order in Council can be made very quickly. Also, delegated legislation is easier to update or "tweak" as technology or society changes, without needing a whole new Act of Parliament.
4. Local Knowledge: Bylaws allow local councils to make rules that suit their specific area. A rule that works for a busy city like London might not be necessary for a small village in the countryside.

5. Disadvantages of Delegated Legislation

Despite the benefits, there are several serious concerns:

• Undemocratic: Most delegated legislation is made by civil servants or unelected people, rather than the MPs we voted for. This takes law-making away from the people's representatives.
• Lack of Publicity: Acts of Parliament get a lot of news coverage. Delegated legislation is often passed in "back offices" without the public knowing what is happening until the law is already in force.
• Large Volume: Thousands of Statutory Instruments are passed every year. It is almost impossible for any lawyer—let alone a normal citizen—to keep up with all the new rules.
• Complex Language: Because these laws are often very technical, the language used can be difficult to understand, making the law less accessible to the public.

Quick Review: Summary Table

Don't worry if this seems like a lot to memorize! Just remember: Parliament gives the power (Parent Act), the courts check the power (Ultra Vires), and the goal is to balance efficiency with fairness.