Control of Delegated Legislation - Parliamentary Control
4. Negative Resolution Procedure
Basic Info
1. House of Lords Delegated Powers Scrutiny Committee
there is scrutiny (critical examination) and debate of the bill which will become the enabling act
then, in the enabling act, parliament sets limits/guidelines
WHAT type of DL is going to be created
WHO is going to create it
HOW the power is going to be exercised
Overall...
usually Parliament retains supremacy
it can make or unmake any law
done through amending or repealing the enabling act
although there is too much DL for Parliament to check
meet to check enabling bills before they become enabling acts to ensure that powers are being delegated appropriately
Parliament can amend the enabling Act to modify/remove the DL making power
can also repeal the enabling Act
effective control: if power to make DL is properly delegated, then more likely the DL will be made appropriately
e.g. not retrospective law (penalising conduct that was lawful when it occurred)
is it effective?
concept is good, but can only suggest opinions
2. Joint Select Committee on Statutory Instruments
Lords and Commons
reviews statutory instruments
reviews many, but too many SI's for all to be reviewed
if the committee finds technical flaws (e.g. unclear wording), it can refer the SI back to Parliament for further consideration
is it effective?
they have no power to amend
many of their findings are ignored
3. Positive (Affirmative) Resolution Procedure
SI wont become law until Parliament HAS voted through a resolution APPROVING it within 28 - 40 days of its publication
all SI must be published by HM Stationery Office ( 🏴 Statutory Instruments Act 1946 - gives the public access to SI)
publication can be seen as a form of control, the Act provides a defence to someone in breach
applies to some significant/controversial SI's if the enabling act requires it
e.g. 🏴 Hunting Act 2004
is it effective?
takes time (goes against one of the reasons for DL - to save Parliament time)
SI presented by a Governement Minister - Gov. usually has a majority in HC, so will win a vote (limited control of ministerial power)
usually, there is no annulment (vote against) so the SI automatically becomes law
applies to most other SI
SI will become law unless the HC or HL VOTES AGAINST it with 40 days
is it effective?
limited effect
most DL is not challenged (too much volume)
is an opportunity for objections to be raised
how many SI's were created between 1950 and 2016?
approx. 170,000
how many of these have been rejected by the HC or HL?
17 (1/10,000)
when did the HC last reject a SI?
1979