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Summary CONTROLS ON DELEGATED LEGISLATION

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LAWS08132 Public Law and Individual Rights -CONTROLS ON DELEGATED LEGISLATION.

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  • January 1, 2023
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CONTROLS ON DELEGATED LEGISLATION

Course Reader:

Bradley & Ewing (15th ed) ch 28 (in eReading box)

Other Readings:

Barnett (9th ed) 317-320

Cabinet Office, Guide to Making Legislation (2014), ch 16. Available at:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/328408/
Guide_to_Making_Legislation_July_2014.pdf

By studying this topic, you should be able to identify the forms and purposes of delegated legislation,
and be able to discuss delegated legislation as an aspect of the allocation of constitutional powers. On
the second point, the issue is not so much the constitutional balance between executive and courts
(although the courts do play a role in reviewing the legality of delegated legislation), but more the
appropriate separation/sharing of powers between executive and legislature.

Delegated Legislation

The Parent Act enables the minister or any authority to enact delegated legislation. DL is subject to a
series of controls i.e. how it is carried out and exercised. It is also subject to judicial review. It is
presumed that the person who has been conferred the power to enact laws by the Parent Act, then it is
that person who should carry that. If the civil service under that specific minister carries out DL then it is
presumed it is carried out in the name of the minister, and that minister will be answerable to
parliament.

Why is DL necessary and why does parliament use DL?

 Time- parliament has a limited amount time and thus it is impossible for parliament to enact
every rule for the overall functioning of government.
 Technical expertise- some legislation requires technical norms and thus it is necessary for
parliament to allow for DL.
 Need for easy amendment or adaptability.
 In certain times for emergency we would need rules in place and therefore it would be
necessary for parliament to allow for DL.

Statutory instruments

Orders in Council (‘statutory’, not prerogative)

Local instruments

Statutory Instruments Act 1946- all SI’s must be numbered and published as a series.

,Interpretation and Legislative Reform (Scotland) Act 2010, Parts 2 and 4, and Schedules 2-

Parliamentary control

There are 2 constitutional concerns that bring about the control over DL- (i) skeletal legislation; and (ii)
Henry VIII clauses.

Parliament can exercise indirect control over delegated legislation through its discussion and approval of
the Act delegating power to legislate (the "parent Act"). Ministerial responsibility to parliament for the
making of DL by their departments and Select Committee scrutiny is also relevant.

“Henry VIII clauses” (allow the minister to amend primary legislation by way of DL) in legislation (power
to modify primary legislation by way of delegated legislation) raise questions about the separation
power. Recent legislation (e.g. Legislative & Regulatory Reform Act 2006; Public Bodies Act 2011) creates
new delegated legislation powers (for example, to modify the functions of a public body); specific
parliamentary procedures for delegated legislation are set out in these statutes too. (Why?) The idea in
giving ministers the power to amend legislation is to enable them to reform legislation with a view of
improving legislation, improve function of authorities.

Committees have a key role to play, particularly in the consideration of statutory instruments:

- Joint
o Technical (legal) scrutiny of instruments by Joint Committee on Statutory Instruments:
can report to the Houses about points including vires, "unusual or unexpected use of
powers", “defective drafting” and "any other ground which does not impinge on its
merits or on the policy behind it” – influential, but has no automatic consequences.
(Some instruments, not subject to Lords scrutiny, go to a Commons Select Committee
instead).
o Formed in 1973.
o Scrutiny of technical legality. It has aided in improving the drafting of legislation.
o Their powers are limited.

- Lords
o The Delegated Powers and Regulatory Reform Committee (House of Lords) – scrutiny of
delegated powers in Bills; ‘appropriateness’ and technical scrutiny of Legislative &
Regulatory Reform Act orders.
o Secondary Legislation Scrutiny Committee (House of Lords): draw the special attention
of the House to an instrument on grounds including that it is “politically or legally
important or gives rise to issues of public policy” or “may imperfectly achieve its policy
objectives”. Also considers appropriateness of Public Bodies Act orders. (Note: until
2012 the SLSC was called the Merits of Statutory Instruments Committee)

- Commons

, o Delegated Legislation Committees (House of Commons) – consideration of merits under
affirmative procedure (or negative procedure if referred to it), up or down vote (no
amendments). (In House of Lords, this is normally taken in the House);
o Regulatory Reform Committee (House of Commons) – ‘appropriateness’ and technical
scrutiny of Legislative & Regulatory Reform Act orders


How can instruments be controlled?

- ‘negative’ or ‘annulment’ procedure (lay instrument subject to annulment on vote of either
House)- laid in draft but can be revoked if either House of Parliament votes against it (the
negative procedure). Occasionally instruments are laid in draft and cannot be made if the draft is
voted against within 40 sitting days.
Under the negative procedure SIs are usually made (signed by the Minister) before they are laid
before Parliament. There will be 40 sitting days, within which MPs or Members of the House of
Lords may request a debate by asking the Government that the instrument be annulled (this
procedure is called ‘praying’ against the SI). In the House of Lords, a debate will most likely take
place on the Floor of the House. In the House of Commons, if the Government agrees to a
debate, it is likely to take place in Delegated Legislation Committees rather than in the main
Chamber. Usually, SIs are laid before Parliament at least 21 days before they come into force.
If there are no objections to an SI subject to the negative procedure then there will be no
Parliamentary procedure on the SI, and even when instruments have been prayed against the
Government may not find time for a debate.
In the Commons, negative SIs which have been prayed against may be referred to a Delegated
Legislation Committee or, far more rarely, be debated on the floor of the House.In the House of
Lords these SIs can be debated on the floor of the House or in Grand Committee. The House of
Lords are unlikely to defeat a negative procedure SI but may vote on a ‘take note’ motion which
highlights a concern about the SI to the Government but does not stop it becoming law.

- ‘positive’ or ‘affirmative’ procedure: requires resolution of approval (usually of both Houses),
either before being made (approval of draft) or after being made (to continue or to come into
effect). If Public Bodies Act 2011, minimum period of 40 days before approval (s 11).
Affirmative procedure. A Statutory Instrument (SI) that is subjectto the affirmative procedure
needs to be actively approved by Parliament before it can become law. Approval must be given
separately in each House. An SI that is concerned with financial privilege or taxation only gets
laid before the House of Commons so only needs to be approved by the House of Commons.
Most debates on SIs in the House of Commons take place in committee where the motion upon
which Members vote is ‘The Committee has considered the instrument’. Delegated Legislation
Committees are given 90 minutes to debate the SI (or 2½ hours for SIs relating exclusively to
Northern Ireland). The Government always votes in favour of the motion, though if it were
defeated the Chair of the Committee would still report that consideration had taken place and
the SI could still become law. The House of Lords consider most instruments on the Floor of the
House but it is rare that they do not approve an affirmative instrument and so stop it becoming

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