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Outline the different forms of delegated legislation

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Introduction

Outline the different forms of delegated legislation. (10 marks) Delegated legislation (secondary legislation) is law that is authorised but not made by Parliament. Parliament lays out a basic framework, known as the enabling Act and other people or bodies are delegated powers to make the more detailed rules. Ministers and government departments can be given the power in the enabling Act to make statutory instruments (SI) relating to the jurisdiction of their ministry. These take the form of rules, regulations and orders. They apply to the whole country and they cover issues like road traffic signs and town and country planning general development orders. The Lord Chancellor has power to make delegated legislation under the Access to Justice Act 1999. Orders in Council are made by the Privy Council. They are used when it would be inappropriate to use a statutory instrument, for example when transferring responsibilities between government departments. If Parliament is not sitting and there is an emergency, the Queen and Privy Council may make an Order in Council as in the fuel crisis in 2000. ...read more.

Middle

The Joint Committee on Statutory Instruments, composed of members from both Houses, reviews all SIs. It can draw Parliament?s attention to those that need special attention. If an SI imposes a tax, is defective, needs clarification or exceeds the powers granted in the Act, it will be referred back to Parliament. Parliament itself holds the ultimate safeguard in that it can withdraw the delegated powers or revoke a piece of delegated legislation at any time. Unlike a statute, the validity of delegated legislation can be challenged in the courts. Any person who has personal interest in the delegated legislation or is affected by it may apply to the courts under the judicial review procedure. This is the grounds that the delegated legislation is ultra vires (beyond the powers) and a piece of delegated legislation can be declared invalid in whole or in part. This can either be in the form of procedural ultra vires, where a public authority has not followed the procedures set out in the enabling Act, as in Agricultural Training Board v Aylesbury Mushrooms Ltd where the ministry failed to consult the interested parties resulted in the delegated legislation being declared invalid. ...read more.

Conclusion

It is impossible for Parliament to foresee all problems which could arise when passing a statute. When problems do arise, delegated legislation to rectify this can be put into place quickly. Ministers can have the benefit of further consultation before regulations are drawn up. This is particularly important regarding technical matters where it is necessary to make sure that regulations are technically accurate and workable. The main argument against delegated is that it is undemocratic because it is made by unelected minsters rather than Parliament. There is a danger of sub-delegation, where the relevant government minister, who is given the original delegated powers, sub-delegates this to the civil servants in their department. This is not the case with by-laws, as local authorities are elected bodies and accountable. The large amount of delegated legislation makes it difficult to keep track of the current law. It receives little publicity compared to Acts of Parliament so people may be unaware that it exists. Delegated legislation shares the same problem of obscure wording as an Act of Parliament which can lead to difficulty in understanding. ...read more.

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