While for Statutory Instruments, they are passed by the government ministers and departments. These powers were given to these departments and ministers by the parent act. All the government departments are headed by a ministers that has been elected to make law. Some statute have included “Henry VIII Clauses”, which allow primary legislation to be amended or repealed by secondary legislation without parliamentary scrutiny, for example the Criminal Justice Bill 1990, which allowed criminal offences to be added or removed by instrument.
Delegated legislation is neccesary in the form of law making, because it saves parliamentary time. The formal procedure for enacting legislation can be both slow and cumbersome. If parliament itself attempted to enact all the legislation necessary to govern the whole realm, it would causes the ineffectiveness in the legislative process. By delegating the formulation of detailed rules and regulations to subordinate authorities, parliament can concentrate its attention on discussing the essential part of legislation.
It also need to deal with future contingencies. When a new piece of legislation is being enacted, parliament cannot forsee all the possible contingencies that may affect the operation of that particular statute in the future. These are mostly concerned with the health provision and welfare benefits. By delegating power to the relevant minister to introduce new measures to deal with unforseen situations that may arise. Parliament avoids the need for amending legislation to be enacted and thus enhances both the speed and flexibility of the legislative process. Delegated legislation can be put into action quickly and if it proves to be ineffective, then it can be revoked.
Technical content is also the reason why delegated legislation is necessary. Few members of parliament have expert knowledge necessary effectively to scrutinise highly technical legislation. It may be more effective to leave such legislation to be made by appropriate minister in consultation with his expert advisers and other interested parties, with the relevant areas. Thus procedure also avoids acts of parliament from becoming a mass of highly complex and unintelligible detail.
On the other hand, delegated legislation is not a necessary law making process. Sub-delegation may take place, as subordinate legislation is sometimes made by people who are unauthorised or unnamed person which the power was not delegated to them to do so. It also reflects a lack of democratic involvement because through delegated legislation, it is made by civil servants other than those ministers who are elected. Hence the peoples views are not fully represented, and they cannot be directly accountable to the public. Delegated legislation have been criticised as being overuse by the parliament. As problem will arise with the increasing number of usage of subordinate legislation if its purpose was to draw out the technical detail.
Delegated legislation can be monitored by parliament and by the court. Through parliament, they attempt to control delegated legislation by passing the enabling act or the parent act which confer rights and also its limitation of its power. Parliament uses the affirmative and negative resolution procedure to supervise delegated legislation. Subject to the affirmative resolution procedure, it is used only for the most important instruments, for example those of special constitutional importance. As a vote has to be taken on the motion to affirm the instrument. Time must be made available by the government for debate and any opposition to the instrument may then be raised. While for negative resolution prosedure, instruments is laid before parliament and will become law on the date specified in it. However, the instrument will be nullified if either house passes a motion calling for its annulment within 40days during periods when parliament is sitting. An annulment motion put down by backbencher is not certain to be dealt with. But if a motion put down by the official opposition will usually be accommodated.
Every new delegated legislation must be publicised, for example the Statutory Instrument Act 1946. All statutory instrument must be printed and sold as soon as possible unless, they are local, temporary, or sensitive and not yet in operation and printing would be inexpedient.
Delegated legislation also can be controlled under the Scrutinising Committees. The members of the Scrutinising Committees are from the House of Common and House of Lords. The committee may not consider the merits of any instrument and an opportunity must be provided for the department concerned to put its case before an adverse report on any instrument is made.
Beside parliament, delegated legislation can also be controlled by judicial review. Delegated legislation may be reviewed by the courts and where necessary may be declared invalid. Accordingly, and in the absence of any express exclusion in the parent statute, the doctrine of ultra vires will operate so as to contain the making of subordinate legislation within its legal bounds. There are two grounds upon which the courts can declare delegated legislation to be void, there are procedural ground and substantive ground. For procedural grounds, the instrument is invalid because the minister has failed to follow the procedure laid by the enabling act. In Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushrooms Ltd 1972, failure to comply with a statutory requirement as to consultation resulted in the order being declared invalid. While for the substantive ground, the subordinate body has made law beyond their jurisdiction, and this will cause the delegated legislation to be void. When this happened the subordinate body must re-draf the law.
Hence, by choosing delegated legislation, it is an applicable system that works well in our system today. It is the choice of two evil, and by choosing delegated legislation, it is the lesser evil.
