Delegated Legislation
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 are effective.
Delegated Legislation is used to create the detailed rules of many statutes created by parliament. When statutes are passed, they only lay down a basic framework for the law - so they often need to be delegated to government departments, local authorities, or public or nationalized bodies, which oversee the day to day operation of the legislation. When the legislation is delegated to these institutions, the statute is known as an enabling act, and the delegated legislation has the same legal force and effect as the Act of Parliament under which it is enacted.
There are three types of delegated legislation - Statutory instruments are made by government departments, Bye-laws are created by local authorities and public or nationalized bodies such as British Rail, which still need to be agreed by central government, and Orders in Council, which are made by the government in times of crisis (eg: the commandeering of the QE2 as a Hospital ship during the Falklands War in 1982)
Delegated Legislation far exceeds Acts of Parliament in terms of quantity, and its repercussions are felt by huge numbers of UK citizens every day with regards to things such as safety laws for industry, road traffic regulations and rules relating to state education, to name just a few.
To prevent the misuse of delegated power by the non-elected representatives, a series of controls have been implemented by central government. Therefore, consultation is required between those who are responsible for creating delegated legislation, and experts within the relevant field, as well as those who are likely to be ...
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Delegated Legislation far exceeds Acts of Parliament in terms of quantity, and its repercussions are felt by huge numbers of UK citizens every day with regards to things such as safety laws for industry, road traffic regulations and rules relating to state education, to name just a few.
To prevent the misuse of delegated power by the non-elected representatives, a series of controls have been implemented by central government. Therefore, consultation is required between those who are responsible for creating delegated legislation, and experts within the relevant field, as well as those who are likely to be affected by it. So, for example, in the case of road traffic regulations, ministers would be likely to seek the advice of police, local authorities, motoring organisations etc. before making the rules. Also, whenever delegated legislation is made, it should always be published, to make it available for public scrutiny.
Another control set up to limit misuse of delegated legislation is that there should always be effective supervision by parliament. This is enforced in a number of ways. Firstly, parliament can at any time revoke a piece of delegated legislation if it wishes to do so, and can also introduce new legislation on the same subject. If an enabling act is of special, constitutional importance, parliament may need to vote in favour of introducing the delegated legislation. The act is debated in the House of Commons, and if a motion is passed it becomes law, usually within 28 or 40 days. This is known as an affirmitive resolution procedure. A negative resolution procedure, on the other hand, means that delegated legislation is put to parliament for a specified time (usually 40 days), and any MP wishing to annul it may do so. This will usually bring about a debate, after which, if either House passes an annulment motion, the delegated legislation will be cancelled.
Other controls in place are; Committee supervision, in which a parliamentary committee reports to each house on delegated legislation which requires special consideration; ministers can ask questions at question time, or raise them in debates; The House of Lords can also veto delegated legislation (eg: in 1968 it rejected sanctions against the Rhodesian government)
As well as this supervision by parliament, there is substantial control by the courts over delegated legislation under the procedure for judicial review. It can be challenged on the grounds of Procedural ultra vires, in which the set procedures laid down in the enabling act have not been followed eg: Agricultural, Horticultural and Forestry training board v Aylesbury Mushrooms Ltd (1972), or Substantive ultra vires, under which it is claimed that the powers laid down by paliament in the enabling act have been exceeded.
Finally, if rules are so perverse, unreasonable or unjust that no official could have made them, they may be declared invalid by the courts.
Because of the highly detailed nature of typical delegated legislation, and because there is simply so much of it, parliament would never have time to fully debate each and every act. Therefore the time-saving nature of delegated legislation, as well as the flexibility and opportunity for ministers to concentrate on the prininciples of the enabling act are distinct advantages.
Other advantages in the use of delegated legislation are that there is access to particular expertise - such as building regulations or safety at work rules -for which government ministers do not usuallly have the technical knowledge required, as well as the local knowledge needed to implement bye-laws effectively.
There are, however, also disadvantages associated with delegated legislation. Firstly, criticisms have been made of the lack of democratic involvement with regards to the fact that delegated legislation is made by civil servants, not directly elected politicians. A further concern is that, owing to sub-delegation, rules can sometimes be made by people who were not given the original power to do so.
In conclusion, the major criticism levelled at delegated legislation is that it is almost impossible to provide effective supervision, despite the controls implemented to do just that. The general public are often unaware of delegated legislation rules, let alone how to go about opposing them, and this has the knock-on effect of less individual challenges being brought before the courts and the courts ability to affect delegated legislation being effected. This means in turn that the most common method of control is parliamentary and, as it it is rarely possible to prevent legislation being passed through the affirmitive resolution procedure, this too has been the subject of criticism about the effectiveness of overseeing delegated legislation.
