Introduction
The affirmative resolution procedure represents a specific mechanism within parliamentary systems for scrutinizing and approving delegated legislation. This process dictates that a statutory instrument, created under the authority of an Act of Parliament, requires explicit approval by both Houses of Parliament to gain legal force. The procedure is governed by standing orders and specific statutory provisions, establishing a formal mechanism that differs from other methods of legislative approval, such as the negative resolution procedure. Key requirements include the laying of the instrument before Parliament, a formal motion to approve it, and the explicit consent of both chambers. This structure ensures a level of parliamentary control over the executive's delegated law-making power.
The Nature of Affirmative Resolution
The affirmative resolution procedure functions as a safeguard against unchecked executive power in the creation of subordinate legislation. Unlike the negative resolution procedure, where an instrument becomes law unless Parliament actively objects, the affirmative process demands a positive vote in its favor. This procedure often applies to statutory instruments that impact fundamental rights, introduce substantial policy changes, or involve significant financial implications. The core principle is that when delegated legislative authority is used in ways that have considerable effects, Parliament must explicitly endorse the measures before they can become legally binding. This formal parliamentary endorsement is distinct from mere passive acceptance.
Parliamentary Scrutiny and Approval
The affirmative resolution procedure entails a rigorous process within the parliamentary framework. First, a statutory instrument, crafted by a government minister or department, is formally laid before Parliament. This act of laying initiates the scrutiny process, making the instrument available for examination by Members of both Houses. The next step involves a parliamentary motion to approve the instrument. This motion must be formally moved and debated within the respective Houses. The motion typically requires a full vote, meaning members of Parliament must explicitly cast their vote in favor of the instrument. If either the House of Commons or the House of Lords rejects the motion, the statutory instrument will not come into effect. This double-approval structure emphasizes the seriousness of the process and ensures a high level of parliamentary oversight.
The Legal Force of Approved Instruments
Once approved by an affirmative resolution in both Houses of Parliament, a statutory instrument acquires the full force of law. This status was expressly articulated in Hoffmann-La Roche v Secretary of State for Trade and Industry [1975] AC 295, where the House of Lords affirmed that a statutory instrument, once approved via affirmative resolution, has the same legal binding power as an Act of Parliament. This judgment stated that the instrument remains a component of the law unless and until it is successfully challenged through legal processes. The court stressed that obedience to such an order is obligatory because both Houses have had the opportunity to reject it, yet have chosen to affirm it. Consequently, the instrument is not merely an administrative directive; it becomes an enforceable part of the legal system.
Judicial Review and Challenges
Although affirmative resolution grants a statutory instrument considerable legal power, it does not place it beyond the reach of judicial review. As confirmed in Hoffmann-La Roche, courts maintain the authority to declare a statutory instrument invalid if the creating minister acted outside the legislative powers delegated by the enabling Act. This concept of ultra vires is pivotal. Courts can review both ‘patent’ defects (problems with the content of the instrument itself) and ‘latent’ defects (procedural flaws in the way the instrument was made). This jurisdiction is not activated by the court on its own initiative; a challenge must be brought through legal proceedings. The possibility of judicial review functions as a critical check on both the executive and the legislature, ensuring that even delegated legislation that has parliamentary approval remains compliant with the rule of law.
The Presumption of Validity and the Burden of Proof
Despite the possibility of judicial review, there is a strong presumption of validity that applies to statutory instruments approved through the affirmative resolution procedure. Courts start from the position that the delegate of the power to legislate, in this case a government minister, acted within his or her entitlement to do so. This presumption places the burden of proof on those who seek to challenge the validity of the instrument. In Hoffmann-La Roche, it was determined that a person seeking an interim injunction to halt enforcement of a statutory instrument must present a compelling justification. The courts, according to Lord Reid, are not to casually set aside law approved by Parliament, thus requiring those challenging a statutory instrument to present a very clear case for why it should be declared invalid. This balance between the presumption of validity and the possibility of judicial review provides a robust but not unassailable system of legislative checks and balances.
Conclusion
The affirmative resolution procedure is a crucial aspect of the UK's legislative framework, designed to ensure parliamentary accountability in the delegated legislation process. The requirement for explicit approval from both Houses of Parliament acts as a significant check on executive power, providing a high level of democratic scrutiny. Though instruments approved through this procedure carry significant legal force, as was demonstrated in Hoffmann-La Roche v Secretary of State for Trade and Industry [1975] AC 295, they are not immune to judicial review. The courts retain the power to declare instruments invalid if they are ultra vires. This system, underpinned by the presumption of validity and the burden of proof resting on challengers, creates a structure that supports the rule of law. By carefully considering both parliamentary oversight and judicial review, the affirmative resolution procedure serves as a critical component of the UK’s constitutional checks and balances, addressing the inherent tension between executive authority and parliamentary control in the creation of subordinate legislation.
