Legislative Control over Delegated Legislation

In one line

The legislature keeps control over the rules its delegates make in three ways: by how it drafts the enabling section, by requiring the rules to be laid before it, and by a committee that scrutinises them.

In the words a student can write in an exam: legislative control over delegated legislation is exercised at three stages. At the stage of delegation, by confining the power in the enabling section, stating the policy and prescribing procedural conditions. After the rules are made, by the laying procedure, under which rules must be placed before the House in one of three forms, simple laying, laying subject to negative resolution, or laying subject to affirmative resolution. And continuously, by the Committee on Subordinate Legislation of each House, which examines whether the rules made are within the power conferred and reports to the House.

Why legislative control matters at all

Because the legislature is the body that gave the power away, and it is the only body that can take it back. Judicial control is powerful but it is occasional: it works only when somebody with standing and money brings a case, and it can only ask whether the rule is lawful, never whether it is wise. Legislative control is continuous and can ask both questions.

This is the green light half of the topic. Judicial control in the previous chapter is the red light half: [Red Light and Green Light Theories].

Stage 1: control at the moment of delegation

The most effective control is exercised before any rule exists, by the way the enabling section is drafted. A legislature which drafts carefully has less to police afterwards.

The devices are these.

1. State the policy in the Act, which is also what saves it from excessive delegation.
2. Confine the subject matter by listing the matters on which rules may be made, rather than conferring a power to make rules generally.
3. Set outer limits, for example by providing that a fee prescribed by rules shall not exceed a stated sum, or that a penalty shall not exceed a stated amount.
4. Prescribe the procedure, requiring previous publication of a draft, consultation with a named body, or the sanction of a superior authority.
5. Require laying before the House.
6. Limit exceptional powers in time, as with a removal of difficulties clause exercisable for two years only.

The Committee on Ministers' Powers made recommendations to this effect in 1932, and they remain the standard: define the powers precisely, use exceptional powers only where essential and for a limited period, and provide for scrutiny.

Stage 2: the laying procedure

Laying means placing a copy of the rule before the House. The parent Act says whether laying is required and in what form. There are three forms and the difference between them is examinable.