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"Secondary legislation is a necessary evil" - Discuss.

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"Secondary legislation is a necessary evil" Discuss. Generally, the most significant type of delegated legislation is regulated by Statutory Instruments, referred as Regulations. An Act of Parliament, created under its authority, will be referred as Parent Act. Parent Act not only gives authority to process of delegation, but places borders of delegated power. Parliament does not directly make legislation. In account of the government being intricate, Parliament has neither the time nor the detailed knowledge to enact all provisions that are required. The power may be delegated by Act of Parliament to the government ministers, local authorities or other regulatory agencies to enable them to make subordinate or delegated legislation. Though, the ability to delegate, carries great advantages, the power is occasionally widespread. For instance, where an Act provides that 'the Secretary of State may make such regulations as he sees fit'. Parliament does not maintain same level of supervision over delegated legislation, so there is a concern that those advantages may be brought at some cost to the Constitution. Delegated legislation is not used simply to fill in details, but also used to establish matters of principle. ...read more.


It may also be argued that the more power is concentrated in the hands of the executive, the more it creates an opportunity for abuse. Consequently, it is considered important that the use of delegated powers is properly controlled. One difficulty in ensuring adequate scrutiny of delegated legislation is that not all delegated legislation requires to be published. In case of Statutory Orders, any requirements as to publication will be stated in the enabling act. A general requirement to publish statutory instruments is contained in s.2 of the 1946 Act. Grant of wide discretionary power makes it much more difficult to control the exercise of power, as limits of the authority are not clearly stated. On the other hand, it is up to the Parliament, when passing enabling act, to give minister or other subsidiary body powers as wide or narrow as it chooses. If the resultant subordinate legislation goes beyond the limit of parent, then it will be possible to challenge it in court as being ultra vires. This creates the legislation of including great advantages. One of the main advantages to delegate is that it saves parliamentary time. ...read more.


Furthermore, it could be argued that the courts have a role to play to ensure that the government does not act illegally and exceed the limits of its power. It does however, sometimes, require the courts to consider the way in which a minister is exercising his discretion. Hence, the courts are brought into the world of politics, where the judges resolve matters of policy. Case in point is in Hotel and Catering Industry Training Board v Automobile Proprietary Ltd [1969] 1 WLR 697, where a minister had a power to make regulations establishing a training board for person employed 'in any activities of industry or commerce' This did not permit him to make regulations relating to employees' social or sporting clubs. Such regulations were ultra vires, the enabling Act. Some would claim that judges with narrow backgrounds should not have authority in these cases and that such matters should be left to our elected representatives. In spite of this, it is argued that because of our system, the government has such a tight control over Parliament, which cannot function as an effective check. Accordingly, it is inevitable that the delegated legislation is used frequently, on account of the convolution of the modern government. ...read more.

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