Controls on Delegated Legislation (OCR A-Level Law): Revision Notes
Controls on Delegated Legislation
Delegated legislation must be subject to proper scrutiny to ensure it is used appropriately and does not exceed the powers granted by Parliament. Two main forms of control exist: parliamentary controls and judicial controls. These mechanisms work together to prevent abuse of delegated powers and maintain the rule of law.
Controls by Parliament
Parliament exercises control over delegated legislation through several mechanisms designed to ensure that secondary bodies do not abuse their delegated powers. These controls operate at different stages of the legislative process.
Parent Act
The parent Act (also called the enabling Act) is Parliament's primary method of controlling delegated legislation. When Parliament drafts the parent Act, it should be clear and unambiguous, providing precise instructions about what delegated legislation can be made and how it should be created. The Act should specify both the 'what' and 'how' aspects, leaving minimal room for interpretation.
By limiting the scope of delegated powers from the outset through careful drafting, Parliament reduces the risk of those powers being misused. The parent Act sets the boundaries within which the secondary body must operate. If these boundaries are clearly defined, there is less room for creative interpretation or abuse of power.
The parent Act is the foundation of parliamentary control - all delegated legislation must operate within the boundaries set by this enabling Act. Clear and precise drafting in the parent Act is essential to prevent misuse of delegated powers.
Affirmative Resolution Order (ARO)
In particularly controversial or sensitive areas, such as human embryology, Parliament may require additional scrutiny before delegated legislation can take effect. An Affirmative Resolution Order (ARO) requires that draft delegated legislation must be debated and approved by Parliament through a vote before it comes into force.
This requirement must be included in the parent Act itself. AROs provide a higher level of parliamentary oversight because they require active approval rather than passive acceptance. This ensures that Parliament has directly considered and consented to the specific regulations being introduced.
Limitation: AROs can be time-consuming and defeat one of the main purposes of delegated legislation, which is to save parliamentary time. With approximately 3,000 statutory instruments (SIs) created each year, it would be impractical and inefficient to use AROs for all delegated legislation. Therefore, they are reserved for the most sensitive or controversial matters.
Negative Resolution Order (NRO)
Where an ARO is not required, Parliament still has the opportunity to prevent delegated legislation from coming into force through a Negative Resolution Order (NRO). Under this procedure, Parliament has 40 days from the date the SI is laid before it to pass an NRO, which would prevent the legislation from taking effect.
This represents a 'no objection' procedure - the SI will automatically come into force unless Parliament actively objects within the time limit. This allows Parliament to maintain oversight whilst enabling most delegated legislation to proceed efficiently.
Key limitation: If Parliament misses this 40-day deadline, the SI automatically comes into force. Once in force, the only way to remove the delegated legislation is through passing new primary legislation or by repealing the parent Act itself. This makes the NRO a time-sensitive control mechanism that requires Parliament to be vigilant.
The NRO represents a compromise between thorough scrutiny and efficiency, allowing delegated legislation to proceed unless Parliament actively objects within the specified timeframe.
Delegated Powers Scrutiny Committee
This committee operates in the House of Lords and examines Bills as they pass through Parliament. Its role is to assess whether the provisions in any Bill delegate legislative power inappropriately or excessively. The committee scrutinises whether the delegation of power is justified and whether sufficient safeguards are in place.
The committee reports its findings to the House of Lords before the committee stage of the Bill, allowing concerns to be raised early in the legislative process. This enables Parliament to consider whether the delegation of powers is appropriate before the Bill becomes law.
Limitation: The committee has no power to amend Bills. It can only report its concerns and make recommendations to the House; it cannot force changes to be made. The effectiveness of this control therefore depends on whether the House of Lords and House of Commons take the committee's concerns seriously and act upon them.
Joint Scrutiny Committee
The Joint Scrutiny Committee examines statutory instruments after they have been made. Unlike the Delegated Powers Scrutiny Committee which looks at Bills, this committee reviews the actual SIs themselves. It provides technical scrutiny, specifically checking whether SIs are:
- Retrospective in effect (applying to past events, which raises concerns about legal certainty and fairness)
- Badly worded or unclear (which could cause confusion or difficulty in application)
- Attempting to impose taxation (which should only be done through primary legislation as it is a fundamental constitutional principle that taxation requires explicit parliamentary approval)
This committee provides a technical review to ensure delegated legislation meets basic standards of quality and does not overstep constitutional boundaries. Its role is to identify technical defects rather than to question the policy merits of the SI.
Controls by the courts
Courts provide an additional layer of control through the process of judicial review. This represents an important check on executive power and ensures delegated legislation complies with the law. Judicial controls operate independently of Parliament and provide a legal rather than political form of scrutiny.
Judicial review
When a party is affected by delegated legislation and believes it to be unlawful, they can apply to the Queen's Bench Division of the High Court for a judicial review. The court examines whether the delegated legislation is lawful and whether the body making it has acted within its powers.
It is important to note that an affected party must bring the case - the courts cannot review delegated legislation on their own initiative. This means that unlawful delegated legislation may remain in force if no one challenges it or if potential challengers cannot afford the costs of litigation.
If the court finds the delegated legislation to be unlawful, it can declare it ultra vires (beyond the powers) and therefore void, meaning it has no legal effect and never had legal effect from the moment it was made.
Ultra vires
Ultra vires is a Latin term meaning 'beyond the powers'. It refers to situations where the secondary body has exceeded the powers granted to it by the parent Act. When delegated legislation is declared ultra vires, it is treated as if it never existed - it is void from the beginning (void ab initio).
There are two distinct types of ultra vires, each addressing different forms of unlawfulness:
Procedural ultra vires
Procedural ultra vires occurs when the secondary body fails to follow the correct procedures set out in the parent Act. This focuses on the process used to create the delegated legislation rather than its content. Even if the substance of the delegated legislation is acceptable, failure to follow proper procedure can render it invalid.
The parent Act often specifies procedural requirements such as:
- Consulting with particular groups or organisations
- Following specific steps in a particular order
- Publishing the proposed legislation in a certain way
- Obtaining approval from specific bodies
If these procedural requirements are not met, the delegated legislation will be procedurally ultra vires.
Key Case: Agricultural Training Board v Aylesbury Mushrooms Ltd (1972)
Facts: The Agricultural Training Board made regulations imposing a levy on mushroom growers. However, the Board had failed to properly consult with the mushroom growers as required by the parent Act before making the regulations.
Decision: The court held that the regulations were procedurally ultra vires because the required consultation process had not been properly followed. The regulations were therefore void and had no legal effect.
Significance: This case demonstrates that procedural requirements in the parent Act are not merely guidelines but mandatory requirements that must be followed.
Substantive ultra vires
Substantive ultra vires occurs when the secondary body goes beyond the actual powers granted to it and makes regulations that exceed what Parliament authorized. This relates to the content and scope of the delegated legislation rather than the procedure used to create it.
A body acts substantively ultra vires when it:
- Makes regulations on matters not covered by the parent Act
- Imposes greater restrictions or obligations than the parent Act permits
- Extends the regulations to groups or areas not intended by Parliament
Key Case: R v Secretary of State for Health ex parte Pfizer Ltd (1999)
Facts: The pharmaceutical company Pfizer challenged regulations made by the Secretary of State for Health concerning the pricing of medicines. The regulations went beyond what the parent Act permitted in terms of the controls that could be imposed on pharmaceutical pricing.
Decision: The court found that the Secretary of State had exceeded the powers granted by Parliament when making the regulations. The court declared the regulations substantively ultra vires.
Significance: This case demonstrates that the courts will carefully scrutinise whether delegated legislation falls within the scope of powers granted by Parliament, ensuring that ministers do not exceed their authority.
Wednesbury unreasonableness
In addition to ultra vires, courts can also strike down delegated legislation that is 'outrageous in its defiance of logic' or so unreasonable that no reasonable authority could have made it. This principle, known as Wednesbury unreasonableness, comes from the landmark case Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948).
Wednesbury unreasonableness provides a safety net, allowing courts to invalidate delegated legislation that, while technically within the powers granted, is so irrational or absurd that it should not stand. This might include decisions that:
- Are based on irrelevant considerations
- Fail to consider relevant matters
- Are so unreasonable that no reasonable authority could have made them
Key Case: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948)
Facts: The local authority granted a licence to a cinema but imposed a condition that no children under 15 could be admitted, whether accompanied by an adult or not. The cinema challenged this condition as unreasonable.
Decision: The court established the test for unreasonableness: a decision would only be struck down if it was so unreasonable that no reasonable authority could have come to it. While the cinema ultimately lost the case (the condition was found to be within the bounds of reasonableness), the case established an important principle.
Significance: This test sets a high threshold - the decision must be truly irrational or absurd, not merely something the court would have decided differently. It prevents authorities from making decisions that, despite being technically lawful, defy common sense or basic logic.
Evaluation of controls
Strengths of the control mechanisms
Multiple layers of oversight: The combination of parliamentary and judicial controls provides comprehensive scrutiny. If one mechanism fails to identify problems, another may catch them.
Flexibility: Different levels of control (ARO, NRO) can be applied depending on the sensitivity of the subject matter, allowing a proportionate response.
Democratic accountability: Parliamentary controls ensure that elected representatives maintain oversight of delegated legislation.
Legal safeguards: The principles of ultra vires and Wednesbury unreasonableness ensure delegated legislation remains lawful and reasonable, protecting citizens from arbitrary or excessive regulations.
Independent review: Judicial control provides an independent check on executive power, separate from political considerations.
Weaknesses of the control mechanisms
Time constraints: The 40-day NRO period may be too short for Parliament to properly scrutinise all SIs, especially given the volume and complexity of modern delegated legislation.
Volume problem: With approximately 3,000 SIs made annually, effective parliamentary scrutiny of all delegated legislation is practically impossible. Parliament simply lacks the time and resources to examine every SI in detail.
Limited committee powers: The Delegated Powers Scrutiny Committee cannot amend Bills, only report concerns. If Parliament ignores these concerns, the committee is powerless to prevent inappropriate delegation.
Access to judicial review: Judicial review requires an affected party to bring a case, which can be expensive and time-consuming. This means that:
- Some unlawful delegated legislation may never be challenged
- Only those with sufficient resources can effectively use this control
- There may be significant delay before unlawful legislation is struck down
Henry VIII powers: Some parent Acts grant very broad powers to ministers to amend or repeal primary legislation through delegated legislation, which can undermine parliamentary sovereignty.
Reactive rather than proactive: Many controls operate after delegated legislation has been made, meaning unlawful or inappropriate regulations may already have caused harm before being struck down.
Legislative reform
The Legislative and Regulatory Reform Act 2006 introduced significant changes to the controls on delegated legislation. This Act allows ministers to make orders removing or reducing regulatory burdens, but includes safeguards such as:
- Requirements for consultation
- Parliamentary scrutiny procedures
- Restrictions on the types of provisions that can be made
Students should research the specific provisions of this Act and evaluate whether it strikes an appropriate balance between flexibility and control.
Exam guidance
For 'describe' questions
- Clearly explain each control mechanism
- Distinguish between parliamentary and judicial controls
- Use appropriate legal terminology
- Give examples of how each control operates in practice
For 'evaluate' or 'assess' questions
- Discuss both strengths and weaknesses of the control mechanisms
- Use case examples to support your arguments (Agricultural Training Board, Pfizer, Wednesbury)
- Consider whether the controls are adequate given the volume of delegated legislation
- Discuss the balance between efficiency and democratic accountability
- Reference relevant statutory reforms such as the Legislative and Regulatory Reform Act 2006
For problem questions
- Identify which type of ultra vires might apply to the scenario presented
- Consider both procedural and substantive aspects
- Assess whether Wednesbury unreasonableness might be relevant
- Explain the potential remedies available
Common exam pitfall
Students often confuse procedural and substantive ultra vires. Remember:
- Procedural ultra vires = wrong procedure (how the legislation was made)
- Substantive ultra vires = wrong content/scope (what the legislation says or covers)
Key command words
- Analyse: Break down the different types of controls and examine how they operate
- Evaluate: Weigh up the strengths and weaknesses of the control mechanisms
- Discuss: Present different viewpoints on the adequacy of controls
- Apply: Use the legal principles to solve a problem scenario
Remember!
Key Points to Remember:
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Parliament controls delegated legislation through the parent Act, AROs (requiring positive approval), NROs (allowing objection within 40 days), the Delegated Powers Scrutiny Committee, and the Joint Scrutiny Committee
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Courts control delegated legislation through judicial review, which can declare it ultra vires (beyond the powers) and therefore void
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Two types of ultra vires: procedural (failing to follow correct procedures) and substantive (exceeding the powers granted)
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Wednesbury unreasonableness allows courts to strike down delegated legislation that is 'outrageous in its defiance of logic'
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Key cases: Agricultural Training Board v Aylesbury Mushrooms Ltd (1972) (procedural UV), R v Secretary of State for Health ex parte Pfizer Ltd (1999) (substantive UV), and Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) (unreasonableness)
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Both parliamentary and judicial controls have limitations: time constraints, lack of amendment powers, cost barriers to judicial review, and practical challenges in scrutinising approximately 3,000 SIs annually
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The controls aim to balance efficiency (allowing quick responses to changing circumstances) with accountability (ensuring delegated powers are not abused)