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Explain the different aspects of delegated legislation. Analyse the degree of scrutiny by Parliament and the courts of these delegated powers.

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Introduction

Explain the different aspects of delegated legislation. Analyse the degree of scrutiny by Parliament and the courts of these delegated powers In order to explain fully the different aspects of delegated legislation, it is necessary to discuss delegated legislation in it's different forms and their purposes. The workings of these forms need to be illustrated by examples to fully assess their uses and capacities. In order to analyse the way in which delegated legislation is scrutinised by Parliament and dealt with by the courts, it is first necessary to examine the purpose of delegated legislation. This also makes it necessary to evaluate how this legislation is used by the courts in order to rule within the guidelines set down by Parliament. Parliament is able to delegate power to another body by means on an enabling act. There are several bodies able to make legislation under an enabling act. Local authorities are able to make by-laws. Ministers and government departments are able to make regulations known as statutory instruments on matters relevant to their own department. In times of emergency, when Parliament is not sitting, the Queen and the Privy Council are able to make orders in council. All of these are enforceable by the courts in the same way as primary legislation enacted by Parliament. The purposes of delegated legislation can be identified also as it's advantages. ...read more.

Middle

Section 235 of this act gives authorisation for district councils to 'make by-laws for the good rule and government' relating to the areas under their control. Although this power has passed to a body outside the 'democratically correct', it must be approved by a Secretary of State. Although delegated legislation is not made in the same way primary legislation is made, it is applied by the courts in the same way. The methods of interpretation used by the courts have the flexibility to reach a consistent decision in keeping with Parliament's intended purposes for the law being applied. There are several ways a court may interpret statutes. It is at the judge's discretion to decide on a fitting method so as to reach the 'right' outcome. The methods of statutory interpretation are so-called rules, though it could be said they are approaches rather than rules. The Literal Rule is an approach used when the courts interpret every word within an Act of Parliament without legal capacity. Words are taken in their plain and grammatical meaning. Although this approach means that everyone can understand what the law says, it often leads to absurdity4. The Golden Rule is used where there are two possible meanings to the wording of an Act and using the Literal Rule would lead to an absurdity5. The Mischief Rule allows the court to use more discretion in that they are able to look beyond the words of the Act of Parliament and look at the intentions of Parliament. ...read more.

Conclusion

A statutory instrument will be questioned by a court where it will have retrospective effect22 or if would restrict basic civil liberties or human rights23. Where a court believes a statutory instrument to be against the spirit of Parliament, it may be struck down for unreasonableness24. The failure to consult a statutory instrument may render it ruled invalid25. Upon consideration of the procedures available for Parliamentary control over delegated legislation, it could be said that Parliament exercise strict control over any delegated power ensuring that no legislation is passed to take effect without their express consent. It appears that concerns for the loss of sovereignty are unfounded and without merit. However, a court is able to interpret and apply any legislation as it sees fit. It could be said, arguably, that it is the judiciary alone who are supreme in that the application of the law is what makes a difference rather than the processes which allow them to do so. This view could be construed as rather narrow in that any case may ultimately progress to the House of Lords again returning the decision making powers to another arm of the body that delegates the power on the outset. Whilst the judiciary are free to interpret the law, it is the amount of freedom they have that should be questioned with regards to the application of law. That freedom and power is given by Parliament and can be removed as procedurally as it was given. ...read more.

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