Why do we need delegated legislation?
We need delegated legislation because parliament does not have the time to pass acts everyday. There are good reasons for why Parliament delegates its legislative power to a range of bodies.
Delegated legislation deals with laws that does not concern England; instead bodies such as the local council make laws that for their local area. This is a good advantage because with bodies making laws for their own areas it allows Parliament to concentrate on making laws that are needed for today's society. Even though MP's make laws, they do not usually have a great deal of knowledge on the subject. With delegated legislation it allows bodies with the knowledge of the certain subject to make the law, as it may be more accurate. Unlike a normal act that is being passed, or being changed delegated legislation does not have to go through the first, second and third reading through the House of Commons and the House of Lords. With delegated legislation it is a quicker process so if the act had to be changed then it would be done in a quicker process. As you can tell, these points are the advantages of delegated legislation.
However it has been argued that delegated legislation is not democratic. When electing, we elect the people that are to sit in the house of Parliament; these are the people that make the laws for today's society. Delegated legislation is UN-democratic because the bodies that have been given the right to make laws with the parent act, are people that have not been voted for by the public. It can also be said that delegated legislation can be part democratic, this is because people of a certain area have voted for bodies like their local council.
In one year 3,000 delegated legislation is passed, because so many are past in one year, the general public is unaware of any laws that have been passed; ignorance of the law is no defence. This means that even though people are unaware of any laws that have been passed, if they break a certain law then they will still be prosecuted. And using excuses such as I did not know there was such a law will not help you. One of the main problems with delegated legislation is that it goes against Montesquieu's theory, the separation of powers. The theory is that no three arms of the state, the judiciary, the executive and the legislative arm should not have members that play a role in more then one arm. It is considered that those people that are involved in more then one arm of the state have too much power.
With delegated legislation government ministers are often given power to make delegated legislation, but sometimes civil servants make the rules. Parliament is the lawmaker, so they are the legislatures, civil servants, such as the police, enforce the law, they are in the executive arm. They contradict with the theory because the executive arm now has the power of making law.
Even though delegated legislation allows bodies and government ministers to make the law, Parliament and the courts still maintain control over delegated legislation. One of the main controls of Parliament lies in the parent or enabling act. This act has to be carefully drafted so that when the power is handed down to a body or government minister, the power that they have is not abused.
In the introduction I wrote about statutory instruments, now I will talk about what power parliament has over this type of delegated legislation. Statutory instruments have two procedures, the negative and affirmative resolution procedures. The negative procedure is when a statutory instrument is laid before Parliament for 40 days, in these 40 days if an MP objects to the contents of the statutory instruments, then the house of lords or commons, or a standing committee will then debate the issue. A negative resolution could be passed in which case the statutory instrument becomes void. The second procedure is the affirmative resolution; this is used by Parliament when power given in the parent act is controversial. If this is the case then Parliament may state in the act that the affirmative procedure must be used. The statutory instrument will become effective only if one or both houses pass an affirmative resolution.
Thousands of statutory instruments are passed every year. The scrutiny committee, which has members from the House of Lords and House of Commons, looks at these instruments in detail. And draws the attention of parliament if any of the statutory instrument; imposes tax on the public, if the act is designed to be effective retrospectively, if the act is outside the power of the parent act or it is poorly drafted. Parliament has the right to withdraw delegated power from local authorities or bodies.
The courts also have power over delegated legislation. If an individual is affected by a delegated legislation.