Introduction
Delegated (or secondary) legislation is law made by a person or body, such as a government minister, under powers granted by an Act of Parliament (the parent or enabling Act). This form of law-making is a significant feature of the modern state, allowing the government to create detailed rules and regulations without needing a new Act of Parliament for every change. However, due to its creation by the executive rather than Parliament, it is important that there are procedures to control its use. This essay will outline the main parliamentary and judicial procedures that exist in the UK to oversee the creation and use of delegated legislation.
Parliamentary Procedures
The primary control over delegated legislation is exercised by Parliament. The enabling Act that delegates the law-making power will itself specify the level of parliamentary scrutiny required for the instrument created under it. The main procedures are laying before Parliament, the negative resolution procedure, and the affirmative resolution procedure.
The most basic requirement is that the delegated legislation, usually in the form of a Statutory Instrument (SI), must be ‘laid’ before Parliament. This process is governed by the Statutory Instruments Act 1946 and ensures that members of both Houses are formally notified of the new law.
The most common method of scrutiny is the negative resolution procedure. Under this procedure, the SI is laid before Parliament and will automatically become law on a specified date unless either the House of Commons or the House of Lords passes a motion (a ‘prayer’) to annul it within a set period, typically 40 days (Statutory Instruments Act 1946, s.5). This procedure is used for the majority of SIs because it is efficient and does not use up a great deal of parliamentary time.
For more significant powers, the enabling Act may require the affirmative resolution procedure. This provides a higher level of scrutiny. An SI subject to this procedure must be actively approved by both Houses of Parliament before it can be made or, in some cases, before it can come into force (Statutory Instruments Act 1946, s.6). This procedure is generally reserved for SIs that, for example, impose taxes, create new criminal offences, or amend primary legislation.
Scrutiny Committees
To assist Parliament in its function of scrutinising the vast number of SIs, specialist committees have been established. The Joint Committee on Statutory Instruments (JCSI) is composed of members from both the House of Commons and the House of Lords. Its role is to examine the technical aspects of SIs, checking whether the instrument complies with the powers granted by the parent Act. It can draw Parliament's attention to an instrument on grounds such as it appearing to impose a charge on public funds, being unclear, or making unusual use of the powers granted (House of Commons, 2023). The House of Lords also has its own Secondary Legislation Scrutiny Committee, which examines the policy merits of SIs and can highlight those which it considers to be politically or legally important. While these committees have no power to annul legislation themselves, their reports are influential and inform debate in the main chambers.
Judicial Procedure: Judicial Review
Beyond parliamentary procedures, delegated legislation is also subject to control by the courts through the process of judicial review. The courts can review whether the body making the delegated legislation has acted within its powers, a principle known as intra vires (within the powers). If a court finds that the legislation was made outside the powers granted by the enabling Act, it can declare it ultra vires (beyond the powers) and therefore void. This can be on procedural grounds, for example, where a minister failed to follow a mandatory consultation process laid down in the parent Act. A classic example is the case of Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] 1 WLR 190, where an order creating a training board was held to be invalid in respect to a mushroom growers' association because the minister had failed to consult them as required by the enabling Act. The doctrine of ultra vires ensures that the executive is held to the limits set by Parliament.
Conclusion
In summary, the procedure for creating and controlling delegated legislation involves a combination of parliamentary and judicial mechanisms. The parent Act sets the initial framework, primarily through the negative and affirmative resolution procedures which determine the level of parliamentary involvement. This is supported by the work of specialist scrutiny committees which examine technical and policy aspects of the legislation. Furthermore, the courts provide an essential backstop through judicial review, ensuring that delegated legislation is made lawfully and within the powers that Parliament intended to grant. These procedures are fundamental to maintaining the principle of parliamentary sovereignty and ensuring there is accountability for laws made outside of Parliament.
References
- Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] 1 WLR 190.
- Elliott, M. and Thomas, R. (2020) Public Law. 4th edn. Oxford: Oxford University Press.
- House of Commons (2023) Joint Committee on Statutory Instruments. Available at: https://committees.parliament.uk/committee/135/statutory-instruments-joint-committee/ (Accessed: 21 August 2023).
- Statutory Instruments Act 1946.
