CONTROLS ON

DELEGATED
LEGISLATION
by Ali Nadeem Shibli
 PARLIAMENTARY CONTROLS
Parliament has initial control over delegated legislation, as
the enabling Act will set the boundaries within which the
delegated legislation is to be made.

It will sate which minister will make what law and if it is for
the whole country or a specific area.

The Act will also set out whether the government must
consult other people before making regulations.
 PARLIAMENTARY CONTROLS
Parliament can also repeal the powers in the enabling Act at
any time.

There is a Delegated Powers Scrutiny Committee in the

House of Lords, which considers whether the provisions of
any Bill delegate legislative power inappropriately.
 PRE-DRAFTING CONSULTATION

Before publication, the government department can consult

with all interested parties and can take their views into
account when drafting the regulations, but it is not bound to
do so.
 SCRUTINY COMMITTEE
A more effective check is the existence of a Joint Select
Committee on Statutory Instruments, usually called the
Scrutiny Committee.

This committee reviews all statutory instruments and,

where necessary, will draw the attention of both Houses of
Parliament to points that need further consideration.
 SCRUTINY COMMITTEE
The main grounds for referring a statutory instrument back
to the Houses of Parliament are that it:
● imposes a tax or charge
● appears to have retrospective effect that was not provided
for
● appears to have gone beyond powers given
● is unclear or defective in some way

The committee can just report back, it cannot alter any

statutory instrument.
 AFFIRMATIVE RESOLUTIONS
A small number of statutory instruments will be subject to
the affirmative resolution.

This means that the statutory instrument will not become

law unless specifically approved by the parliament.

It will have to be debated in the Parliament before it can

operate.
 NEGATIVE RESOLUTIONS
Most other statutory instruments will be subject to a
negative resolution.

This means that the relevant statutory instrument will be

law unless rejected by Parliament within 40 days.

The main problem with this procedure is that, in view of the

number of statutory instruments issued, very few will be
looked at in Parliament.
 QUESTIONING
Individual ministers may be questioned by MPs in
Parliament on the work of their departments, and this can
include questions about proposed regulations.
 COURT CONTROLS ON DELEGATED LEGISLATION
Delegated legislation can be challenged in the court on the
grounds that it is ultra vires (beyond powers)
 JUDICIAL REVIEW & LOCUS STANDI
Any action to challenge will be taken to Queen’s Bench
Division of the High Court.

It can only be taken by a person or body with locus standi or

an interest in the proceedings.

This will usually be a person or body affected by a decision,

or someone on their behalf.
 JUDICIAL REVIEW & LOCUS STANDI
Locus standi will be decided as a preliminary matter, before
the main issues in the case are considered.

Any delegated legislation which is ruled to be ultra vires is

void and not effective.

There are two types of ultra vires

i. procedural ultra vires
ii. substantial ultra vires
 PROCEDURAL ULTRA VIRES
This is concerned with how the delegated legislation is made
if any required procedures have been correctly followed.

Any piece of delegated legislation made without following

the correct procedure will be ultra vires and void.
 SUBSTANTIVE ULTRA VIRES
This is concerned with whether the content of the delegated
legislation is within the limits specified in the parent Act.

Any delegated legislation beyond those limits will be ultra

vires and void.
 SUBSTANTIVE ULTRA VIRES
R v Secretary of State for Education and Employment ex
parte National Union of Teachers (2000)

It was ruled that a statutory instrument setting conditions

for appraisal and access to higher rates of pay for teachers
was beyond the powers given in the Education Act 1996.

In addition, the procedure was unfair, as only four days had

been allowed for consultation.
 SUBSTANTIVE ULTRA VIRES
Attorney-General v Fulham Corporation (1921)

The parent Act gave the local authority the power to provide
public clothes-washing facilities. The authority set up a
commercial laundry where their employees washed
residents’ clothes.

This was held to be ultra vires, as they had no authority to do

so.
 UNREASONABLENESS
A piece of legislation or a decision can be declared
‘Wednesbury Unreasonable’ following the decision in
Associated Provincial Houses v Wednesbury Corporation
(1948).
 UNREASONABLENESS
R (Rogers) v Swindon NHS Trust (2006), when a woman
with early-stage breast cancer was prescribed the drug
Herceptin by her doctor.

The NHS Trust refused to provide this non-approved drug,

because it said that her case was not exceptional.

The Trust was unable to show why the drug was prescribed
for some patients and not others.

Its decision was decided in court to be irrational,

unreasonable and void.
 UNREASONABLENESS
Strickland v Hayes Borough Council (1896).

A bylaw prohibiting the singing or reciting of any obscene

song or ballad and the use of obscene language generally.

held: unreasonable and so ultra vires

because it was too widely drawn in that it covered acts done

in private as well as those done in public.
 UNREASONABLENESS
levy taxes and sub-delegation are also considered to be
unreasonable and ultra vires.
YOUR TURN!

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