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A) Describe how the system of Delegated Legislation operates.
B) Discuss the advantages and disadvantages of such legislation and consider whether or not the controls on Delegated Legislation are effective.
A)
Delegated legislation is sometimes known as secondary legislation and is where an Act of Parliament is passed, giving someone other than Parliament the power to carry out tasks.The body is then acting with the authority of Parliament.
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There are three main forms of delegated legislation which are, Statutory Instruments, Bye-laws and Orders in Council.
Statutory Instruments are drafted by the government departments.The power to create these laws will have been given to the minister who heads the department by the Parent Act.They may also be referred to as 'ministerial regulations'
The Parent Act will lay down the procedure that must be followed to bring the statutory instrument into force.For example Education Act 188 enabled a government minister to fill in details of a national curriculum syllabus.There is often a duty to consult various named organisations, and then one of two procedures will be followed.
The first of these is the negative resolution procedure.Here a statutory instrument is laid before Parliament for a period of 40 days and if a member of parliament objects to its contents, the house (Commons or Lords) or a standing committee will debate the issue.After the debate they may pass a negative resolution which will make the statutory instrument void.
A statutory instrument becomes law on the date on which it's laid before parliament which means that it is possible for an instrument to become law for a while before it is annulled.
The second procedure which can be followed is the affirmative resolution procedure.Here if the power given by the Parent Act is controversial, Parliament may state that the above procedure must be used.The statutory instrument will become effective only if one or both houses pass an affirmative resolution.
The second form of delegated legislation is Bye-laws which are laws that Parliament has given other bodies such as local authorities the right to make e.g. drinking in public places.Parliament gives them this right in respect of a certain area or a certain activity.The purpose of bye-laws is to allow the making of rules to suit local circumstances, for example A local council can pass bye-laws (under local government act) to make detailed provisions with regard to car parking.
Bye-laws have to be approved by the relevant minister.
The third type of delegated legislation is Orders in Council.This is where Parliament delegates power to make changes of constitutional or other great importance to the Privy Council.The Privy Council is a body of senior ministers that meet with the monarch and is useful as a means of bringing power in an emergency situation.One common use of orders in council is to bring an act or part of an act into effect.
On an everyday basis, delegated legislation is an extremely important source of law.The output of delegated legislation far exceeds that of Acts of Parliament, and its provisions include rules that can substantially affect the day-to-day lives of a vast majority of people.
B)
One advantage of delegated legislation it that it saves Parliamentary time which is probably the most important reason for using this method of law making.Members of Parliament are relieved of the need to spend unjustified amounts of time on uncontroversial and routine issues, which means they can concentrate on shaping laws needed for today's society.Also greater flexibility is assured by the ability to enact and change the rules quickly without a lengthy Parliamentary procedure.This speed is useful both because it allows rules to be changed as circumstances change, and also because it is possible to deal with any emergencies as they happen.
Many regulations cover technical subjects which few Members of Parliament are competent to discuss adequately so local and specialist knowledge may be drawn upon when local authority bye-laws are passed.Statutes require weighty procedures for enactment and can only be revoked or amended by another statute.Delegated legislation however can be put into action quickly and easily revoked if it proves problematic.
The major criticism and disadvantage of delegated legislation is that it is not democratic.It could be seen as law-making by people who are not elected and therefore not directly accountable.In the first half of last century there were wide spread criticisms about the growth of delegated legislative powers.One was that delegated legislation need not ever be debated or even mentioned in Parliament, and might therefore become law without people really being aware of the fact.
It is generally felt today that these criticisms were exaggerated as safeguards do exist against abuse of delegated powers. There are two types of control over delegated legislation, Parliamentary and Judicial.
Parliamentary control lies, firstly in the careful creation of statutes so that opportunities for abuse are not created.An individual who believes that a piece of delegated legislation goes beyond the powers given by Parliament can challenge that legislation, provided that they are affected by it. This is where control by the courts comes in.
Any delegated legislation which is made by a body which has exceeded its powers is said to be 'ultra vires' and therefore void.An example of delegated legislation made through the courts is Kruse v Johnson (188) here it was decided that a bye-law which is 'manifestly oppressive' will be void.In this case the defendant had been charged with singing hymns in the street contrary to bye-laws.
Parliament being the supreme body, having given the power to legislate, can obviously take the power away at a future date.Parliament also has some control over statutory instruments in the two procedures by which these instruments are created.For example sometimes a statute gives a minister very wide powers, such as the power to change a provision in the act itself through the use of delegated legislation e.g. s.8 of the Access to Justice Act 1 provides that the Community Legal Service will be governed by a code when deciding to give legal advice to an individual.It sets out a range of criteria to be included in the code plus factors that the Lord Chancellor may by order require the commission to consider.So criteria laid down by Parliament can be added to at a later date without reference to Parliament.
Although the House of Lords cannot prohibit proposed Acts, the same does not apply to delegated legislation. In 168 the House of Lords rejected an order imposing sanctions against the Rhodesian Government made under the Southern Rhodesia Act 165.
Despite the above controls over delegated legislation, the reality is that effective supervision is difficult. The fact that delegated legislation is published has only limited benefits as the general public are frequently unaware of the existence of delegated legislation so would not know on what grounds it could be challenged or even how to go about challenging it.
The main method of control is Parliamentary but this also has its drawbacks.Although the affirmative resolution procedure usually ensures that Parliamentary attention is drawn to important delegated legislation, it is rarely possible to prevent such legislation being passed.The Select Committee on the Scrutiny of Delegated Powers has been able to secure changes to a number of important pieces of legislation but it too lacks real power, as it is unable to consider the merits of delegated legislation and its reports have no binding effect.
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