Delegated legislations are laws made by executives using the powers given to them by the primary legislation. The aim is to promote better legislation and reduce burden of courts caused by legislation. There are various types of delegated legislation.
Bye-laws are legislation made by local authorities. Statutory Instrument is laws drafted by government ministers to supplement the aims of primary legislation. Orders by Council are laws made in times of emergencies, by government department, approved by Privy Council and signed by the Queen. Each of these contributes as a source of law.
Those that draft delegated legislations are not represented by elected representatives. This includes consultation, publication and parliamentary controls.Those who make delegated legislations often consult experts within the field and the bodies that are affected by it.
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This is seen in the case of Aylesbury Mushroom’s case. The minister established a training board for land workers. Under the Enabling Act, various parties have to be consulted. The minister neglected to consult Mushroom Growers Association .As a result, the Training Bodies did not apply to the association.
All delegated legislation is published for public to scrutinize. Courts rely on public to bring cases to court to conduct judicial review. Parliamentary controls may include Affirmative and Negative Resolution Procedures. Affirmative Resolution Procedure usually concerns Primary Acts of constitional importance. Hence, Parliament may be required to vote for its approval of the delegated legislation. Negative Resolution Procedure is where Parliament wishes to annul a delegated legislation through voting system. The delegated legislation will be cancelled if majority is in favour of annulment. A debate will be guaranteed only of the annulment is by the opposition which may be unfair when the annulment is by a backbencher. The Enabling Act lays down the scope of the powers given to those that draft legislation.
A parliamentary committee supervises the making of delegated legislation and reports to each House on any delegated legislation that prohibits challenge by courts or provides unusual powers granted by the Enabling Act. House of Lords have the power to veto any proposed delegated legislation .This is an effective control as the committee is independent of the ministers making delegated legislation and may be able to prevent unreasonable delegated legislations being made.
Delegated legislation is advantageous as it can be challenged under the procedure of judicial review whereas the validity of a statute can never be challenged due to parliamentary sovereignty. Challenge may be based on the following grounds.
Ultra vires is where a person had acted beyond the powers granted. This may be based on 2 grounds for judicial control which may be procedural or substantive grounds.Procedural grounds is where a citizen may challenge the validity of delegated legislation where there has been a failure to follow procedures laid down in Enabling Act. It can also be challenged on unreasonableness. It has many advantages and disadvantages. It shifts too much power to the ministers and threatens democracy. There is insufficient control hence reforms should be introduced to balance it.