What are the advantages & disadvantages of secondary legislation.

“What are the advantages & disadvantages of secondary legislation”

When looking at the question of the advantages and disadvantages of Secondary Legislation it is first important to establish its advantages and disadvantages as compared to what. That is, what are the other types of legislation that command over what goes on in a society? Once this has been established it is then important to look at these different and see how they differ. Deciphering what makes a particular type of legislation that type can do this. Who makes the type of legislation? How is it implemented and to what degree of the law can it be executed. When this has been done it will be quite clear as to how one type of legislation can be more of an advantage to society than another. When this has been completed it will then be necessary to look at the role of Parliament in the implementation of Secondary Legislation. It will have to be established whether secondary legislation takes away from the law making power of Parliament. Once this has been done an analysis into how widely Secondary Legislation is used will answer the question of whether Parliament is abdicating from its power.

In the UK there is a system of checks a balances so that no on e organ of government can dominate the legislative process. In order to facilitate the workings of Parliament delegated legislation is used to speed up the legislative process where time is limited or the point is complex or highly technical. The delegation must be made to a minister of the Crown, a local authority or to a utility or private undertaking. Despite Parliament giving away such power, Parliament still retains the right to examine, modify, change or ignore any secondary legislation with which it does not agree. The courts also play a part in this process. If a court finds that a minister or other party has not kept strictly within the guidelines of the enabling legislation they may decide the secondary legislation to be ultra vires, as in the case Laker Airways v Department of Trade 1977.

There are three different types of secondary legislation. These are Orders in Council, Statutory Instruments and bye- laws.

Orders in Council are government orders of a legislative process made by the crown and members of the Privy Council either under statutory powers conferred on the Monarch in Council or as an exercise of Royal Prerogative

Statutory Instruments are any secondary legislation to which the Statutory Instrument Act 1946 applies. This includes :

Delegation under powers conferred by an Act passed after 1947, either on the Crown or on a government minister, and expressed by that Act to be exercisable by an Order of Council in the former case or by statutory instrument in the latter
Delegation made after 1947 under powers conferred by an earlier Act and formerly governed by the Rules Publication Act 1893

Regulation or order made prior to 1946 may still come into force as statutory instruments if they meet the criteria of pre-existing legislation. The Act is also concerned with certain aspects of ...

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Delegation under powers conferred by an Act passed after 1947, either on the Crown or on a government minister, and expressed by that Act to be exercisable by an Order of Council in the former case or by statutory instrument in the latter
Delegation made after 1947 under powers conferred by an earlier Act and formerly governed by the Rules Publication Act 1893

Regulation or order made prior to 1946 may still come into force as statutory instruments if they meet the criteria of pre-existing legislation. The Act is also concerned with certain aspects of parliamentary control. It standardises negative resolution procedure for statutory instruments by providing that, if the enabling statute simply makes them subject to annulment by resolution by either House of parliament, they are to be laid before parliament for forty days and liable to annulment during that period.

Bye- Laws are made principally by local authorities. District borough councils have general powers to make byelaws for the good rule of the government in there are and all local authorities have powers to make them on a wide range of specific matters, for example, Public Health. Certain corporations such as the British Airports Authority also make byelaws for the regulation of their under takings. A statutory power to make byelaws includes a power to rescind, revoke, amend or vary them. By contrast with most other forms of secondary legislation, byelaws are not subject to any form of parliamentary control but take effect if confirmed by a government minister. However as previously mentioned byelaws are subject to judicial control by means of the doctrine of ultra vires. Other bodies have acts that govern the powers they have in making rules that affect the administration of legislation. The courts have the Supreme Act 1981 and the Magistrates Court Act 1980. Professional Organisations also have rules such as the Law Society which is governed by the Solicitors Act 1974.

Now that Secondary Legislation has been defined and the different types have been qualified the question of its advantages and disadvantages will be able to be examined.

A major advantage of secondary legislation is he fact that it saves on Parliamentary time. In the passing of an Act it must first enter The House of Commons in the form of a Bill, to proceed it must go through a five stage process, that is:

First Reading
Second Reading
Committee Stage
Report Stage
Third Stage

Once it has passed through these stages the process must then be repeated in the House of Lords. At which point it can bounce back and forth between the two, if there is any disagreement, for up to a period of a year. Following this, before the Bill becomes an Act it has to go on for Royal Assent.

Secondary Legislation is based on Acts that have previously come into force, the Parent act. Secondary Legislation is merely advancement on these. Unlike statutes they are not started from the ground up and a certain knowledge on the particular subject will have been gained. To add to this Government Ministers will often consult interested bodies and parties before drafting Statutory Instruments. Therefore the decision on procedure is being made with the help of people who have a thorough knowledge of the subject. Statutory Instruments are also subject to a Parliamentary Committee that comprises of members of both Houses. They scrutinise any Instruments that draw the attention of Parliament.

The grounds of Ultra Vires also give anybody who may be affected by Secondary Legislation the authority to challenge. This is done by Judicial Review were a person can take the body making the decision to the High Court to challenge the decision. Unlike an Act of Parliament, which is supreme and cannot be challenged, Secondary Legislation can be declared void if it does not follow correct procedure or if it is outside the powers granted.

Secondary Legislation is more flexible than a act of Parliament. It can be passed quickly and is easily amended or revoked, so the law can be brought up to date. Through primacy of statute it is impossible for the courts to refuse to apply primary Legislation on the grounds that it is invalid or outdated, a later Parliament or ultimately the European Court of Justice can only do this.

There are a number of disadvantages associated with the implementation of secondary legislation mainly due to the fact of the sheer numbers of them that are passed every year. For example, over 2000 statutory instruments in a complete total of over 3000 pieces of secondary legislation are passed every year.

With the volume of secondary legislation going through there is often little chance for debate or collaboration with the appropriate bodies. The Agricultural Training Board v. Aylesbury Mushrooms (1972) was an example of this. Here a piece of legislation went through and was subsequently deemed to be void on the grounds that there was no consultation with the mushrooms growers as was required by the act that gave the power. In this case, as with that of anybody who feels that they have been treated unjustly as regards of a piece of secondary legislation, a lot of court time and money was wasted. This could have been stopped had the subject been fully and properly debated before implementation.

It has been mentioned previously that there are parliamentary controls set up to prevent the wrongful implementation, for example, through Parliamentary Oversight. That is, through the Affirmation Process and the Scrutiny Committee. This however seems to conflict with one of the primary reasons for the introduction of secondary legislation, that being, to save on Parliamentary time.

With the Affirmation Process there are two ways in which a piece of legislation can be implemented:

Positive
Negative

Positive Affirmation is were a piece of legislation can go through but only after approval by positive resolution in Parliament. Negative Affirmation, the much more common of the two, works on the principal that if no-one annuls it after a certain period, usually forty, days then it will become legislation. Therefore if nobody says anything the piece of legislation will slip through parliament without receiving the proper scrutiny.

In looking previously at the different types of secondary legislation it could be seen that the bodies making the legislation are at least in part undemocratic. Statutory instruments are regulations made by government ministers but the decisions can be passed onto civil servants and lower government bodies. Which puts a large amount of authority onto government workers who haven’t actually been elected to their position. Byelaws can be made by Local Authorities but also by public corporations and companies. It is very rare for companies to represent the good of the general public over themselves. Orders in Council are laws made by and with the advice of the Privy Council, who are not a publicly elected body. So the question has to be asked of who is actually resenting the general public?

Secondary Legislation, it has been suggested may take away some of the law making power of Parliament. That is, Parliament is not the only body that make the rules that govern what goes on inn a society. This however does not mean that there is an abdication of its responsibility by Parliament, the main reason being that secondary Legislation cannot be implemented without the existence of a parent act, an act that has already been passed through Parliament. What can be said however is that Parliament has lees control over how the powers of the act will develop and who they will eventually be interpreted. This means that a lot of the power will be transferred to the courts and their statutory interpretation

Courts in the United Kingdom are bound to obey UK statutes regardless of how fair or practical they are, however judges do have certain flexibility in interpreting them. Interpretation is governed by the Interpretation Act 1978 which generally states that interpretation is the judicial process of determining, in accordance with certain rules and presumptions, the true meaning of acts of Parliament. The principal rules of interpretation are as follows:

An Act must be construed as a whole, so that internal inconsistencies are avoided
Words that are reasonably capable of only one meaning must be given that meaning whatever the result, this is the Literal Rule
The Golden Rule states that ordinary words must be given their ordinary meaning and technical words given their technical meanings.
Mischief Rule is when an act aims at curing a defect in the law and any ambiguity is to be resolved in such a way as to favour that aim.

Judges may interpret a statute strictly if they feel this is necessary, or if it is worded in such a way that makes ambiguity possible they may allow a wide interpretation. Judges may even possibly interpret a statute to mean one thing in one case and something completely different in another. Judges, although allowed to offer their own sometimes interpretation, may never act outside the law laid down by parliament.

Parliament is an effective lawmaker because it is democratically elected and this means that the laws passed by parliament will reflect the values and demands of the community. Because parliament is representative and responsible, members of Parliament can be voted out of power if laws are passed which the community does not like or is not prepared to accept. On the other hand the courts are not democratically elected and therefore judges do not have the same responsibility to represent the community. This reduces the effectiveness of the courts as a lawmaker as they may make decisions that are old fashioned or that fail to acknowledge changing technology or values. However, because the courts can act independently of public pressure they are able to make controversial decisions that Parliament may not be prepared to make but are actually for the good of the community, or sections of the community. Having both Parliament and the courts making decisions is beneficial for the community and both can monitor the performance of the other in shaping society and it is harder for one to get away with hidden agendas. For example, Parliament passing an Act, that is not very beneficial to society, coming up to an election just to keep their seat.