Delegated legislation — common mistakes

In an essay on controls, ensure you distinguish clearly between parliamentary controls (the role of Parliament itself) and judicial controls (the role of the courts). A strong answer will analyse the effectiveness of each type of control, not just describe them.

Yes and no. Delegated legislation is legally binding and has the full force of law, so in that sense, it is 'real' law that you must obey. However, it is subordinate to Acts of Parliament. An Act of Parliament can override any piece of delegated legislation, and the courts can declare delegated legislation void if it is 'ultra vires'. The courts cannot do this to an Act of Parliament due to the doctrine of Parliamentary Sovereignty.

The key difference is the default outcome. With the negative procedure, the default is that the law passes unless Parliament actively stops it. This requires less parliamentary time and scrutiny. With the affirmative procedure, the default is that the law fails unless Parliament actively approves it. This forces a debate and a vote, ensuring a higher level of scrutiny for more significant or controversial powers.

This is a major criticism and a key point for evaluation. The argument is that law-making power is passed from elected MPs to unelected civil servants or appointed ministers. However, the democratic justification is that the power is delegated by a democratically elected Parliament, the minister responsible is accountable to Parliament, and Parliament retains ultimate control through the enabling Act and scrutiny procedures. Whether these controls are effective enough to counter the democratic deficit is a central debate.