The Committee on Ministers Powers said, “whether good or bad” delegated legislation is inevitable, and, in the opinion of one of its members that it was, “a necessary evil, inevitable, but nevertheless a tendency to be watched with misgiving.” So parliament must hold control over these legislators through the use of accountability and scrutiny.
Auditor General of Alberta once said, “Accountability is necessary when responsibility is assigned or delegated………… an effective accountability framework is required when central control is reduced or eliminated.”
So parliament should hold these delegated legislators accountable and this can be done through the use of questions. They can also ask for papers from government departments and also ministers.
Parliament can also scrutinise through the use of committees. These committees decide whether secondary legislation should be brought to the attention of the Houses of Parliament. The 14 members joint committee for example consider statutory instruments and they decide if an instrument is ultra vires (If they act beyond their designated powers). If a court decides that a minister has acted outside his normal powers, it can declare a piece of delegated legislation void. The joint committee also consider which control should be written into a statute. The scrutiny committee has a large amount of work so a subordinate legislation subcommittee receives some of this heavy workload.
The subcommittee according to Victor Perton (MP) “safeguards the community against inappropriate uses of regulation-making power and also ensures that the regulations under its supervision don’t exceed the powers given to the Executive.” The committees have been relatively successful in improving drafting, but the Hansard society Commission still believes that the “whole approach of Parliament is ……… highly unsatisfactory.”
A statutory instrument will not become law unless it has been approved by parliament. The act is laid before parliament but the MPs and life peers are unable to amend it. This undermines their duties and they are only able to find out whether or not the statutory instrument exists. Parliament has the power of annulling the instrument but a disadvantage is that if there is no resolution between either House to annul the instrument, it passes into law.
This process can be very time consuming because when the Houses of Parliament have to pass a resolution approving the instrument, the government has to find time for a debate otherwise it will not become law.
According to Denis Keenan, in his book of English Law, it is essential that an instrument has to come into law before it should be laid before parliament. The Lord Chancellor and Speaker of the Commons should be notified and they have to give an explanation to say why the copies could not be laid before the instrument came into operation.
This shows that parliament loses a bit of control in this law making process. There is an increasing production of statutory authorities, statutory officers, public officers, public servants etc. So this could also be a matter of concern for parliament with all these law-making bodies. It means that the volume of secondary legislation is very big and the number of statutory instruments largely exceeds the number of Acts in Parliament so this has led to the need for greater control of the legislative powers of the Executive.
The large amount of statutory instruments produced can also be a problem because as there is so much; there is not a lot of publicity given to them. People may not be aware of the different instruments as more attention is drawn towards the Acts of Parliament through the media. It is a defence to a prosecution to plead that the statutory instrument had not been published, unless there is enough evidence to prove that it had been brought to the attention of the public. (Statutory Instrument Act 1946).
In 1954, the case R. v. Sheer Metalcraft showed that the statutory instrument was not published properly but it was also incomplete.
Although it seems that through the use of secondary legislation, parliament loses some of its responsibilities as supreme lawmaker they have no reason to abdicate from this position.
Parliament still has to create primary legislation so that secondary legislation can be made from it. Primary legislation consists of Acts of Parliament (also know as statutes). Statutes are made by firstly being drafted and then being enacted. ‘The Queen in Parliament’ officially makes them and the two houses and the Monarch must approve them. The standard procedure for a Bill to become an Act has five stages, 1) The First Reading; 2) The Second Reading; 3) The committee Stage; 4) The Report Stage; 5) The Third Reading. It is then sent to the opposite house and if it has the whole government majority, it receives a Royal Assent and it immediately becomes and Act.
So Parliament could not abdicate from its’ responsibility as a supreme lawmaker as who else would take the responsibility. It would be too much power for the delegated legislators to have and someone needs to hold them accountable.
By-laws are another type of delegated legislation. These can be made by local authorities to cover matters in their own area and they can also be made by public co-operations. They do not take effect unless approved by the relevant ministers. Some may be quashed on the grounds that they are ultra vires e.g. Staden v. Tarjanyi 1980.
Secondary legislation has many advantages and disadvantages but parliament should not ‘bow’ down to these legislators. Parliament is still very important as a supreme law-maker. Delegated legislation just helps with the process of law-making. It saves parliamentary time, it is flexible e.g. every traffic light requires that a piece of delegated legislation (a by-law) be passed. Secondary legislation is there to help parliament with any national emergencies that may arise, e.g. Emergency Powers Act 1939.
We can still notice though that parliament can lose powers to these legislators. Secondary legislation laws are not debatable therefore MPs etc. have no say in any matters, and also there are many more laws passed through secondary legislation than there is Acts of Parliament which causes ‘trouble’ in the sense that many people may not know what the law consists of.
Parliament has controls over secondary legislation. Negative resolutions (annulments) means that legislation will not become law until parliament say so, and also the scrutiny committees monitor statutory instruments. This means that Parliament is always in control and will make sure that the government will stay in power, making those who pass delegated legislation accountable, so parliament cannot abdicate as supreme lawmakers.
Bill Hayden (1989), Parliament’s role in delegated legislation, httl:/home.vicnet.net.au/nvictorp/rights4.htm
Committee on Ministers Powers (1932) Cmnd.4060
http://members.lycos.co.uk/lawnet/DELLEG.HTM
Auditor General of Alberta (1994), Annual Report of the Auditor General 1993-94. Oct.14, 1994
Parliament’s Role in delegated legislation, http://home.vicnet.au/~victorp/rights4.htm