Parliamentary Oversight:
This may seem to conflict with the need to save Parliament time, however, a responsible Parliament must monitor the use of powers it has delegated.
There are two main forms of oversight:
Affirmation Process:
- Most SIs have to be affirmed before coming into force
- Positive affirmation - only comes into force after positive affirmation from Parliament
- Negative affirmation - comes into force unless annulled by a negative resolution in Parliament
- Negative affirmation is more common, but reliance on this may mean that draft instruments receive inadequate policy scrutiny
Scrutiny Committee:
- Reviews technical merit of all draft Statutory Instruments
- Refers to Parliament those giving cause for concern (e.g unusual or unexpected use of the power)
- The committee acts as a filter, so that Parliament only needs to consider the small number of instruments referred
- Reports its findings to the House of Lords before the committee stage of the Bill
Judicial Review:
- The limited nature of delegated powers means that courts can annul delegated legislation where it is ultra vires (acting outside of its own power)
- Substantive ultra vires - when the subject matter is outside the scope of power (A-G v Fulham Corp [1921])
- Procedural ultra vires - subject matter intra vires, but serious failure to comply with a mandatory procedural requirement - e.g failure to consult (Agricultural Training Board v Aylesbury Mushrooms [1972])
Joint Select Committee on Statutory Instruments:
- Evaluates all delegated legislation on a technical level
- It can flag up a problem on technical grounds where: the delegated legislation: tries to impose a tax, has an unintended effect, is ultra vires, makes unintended use of powers to make the delegated legislation or is badly drafted
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