What Are the Controls on Delegated Legislation?

Delegated legislation is controlled by Parliament and the courts. Parliament sets the limits when it passes the enabling Act. The courts can then check whether a person or body making delegated legislation has stayed within those limits.

Parliamentary controls

An enabling Act (also called a parent Act) gives someone, such as a government minister, the power to make detailed rules. It states what that power can be used for and may require a particular procedure.

Parliament can also scrutinise statutory instruments, a common form of delegated legislation. Under the affirmative resolution procedure, an instrument needs parliamentary approval before it can take effect. Under the negative resolution procedure, it can take effect unless Parliament objects within the permitted period. The Joint Committee on Statutory Instruments examines instruments for technical issues, such as whether they go beyond the powers granted by the enabling Act. It does not assess the merits of the policy. Parliament can also change or repeal the enabling Act.

Judicial controls

A court can review delegated legislation for ultra vires, meaning “beyond the powers” granted by the enabling Act. Substantive ultra vires concerns what the rule says: for example, a minister cannot make a rule on a subject the Act does not authorise. Procedural ultra vires concerns how it was made: a required step, such as consultation, must be followed. Courts can also review delegated legislation for unreasonableness.

In Aylesbury Mushrooms (1972), a required consultation had not properly included mushroom growers. The order was therefore invalid as it applied to them.

Exam mistake to avoid: do not say that parliamentary scrutiny guarantees every instrument is debated. Explain which procedure applies, then distinguish parliamentary scrutiny from the courts’ power to rule on validity.