Bye-Laws of Local Authorities, this type of delegated legislation is made by the local authorities for example County Councils, to deal with matters within their area under powers given to them in Acts of Parliament; however they require the approval of the appropriate minister. For example rules detailing car park restriction in a town centre would be made via this method. The purpose of this is to allow the making of rules to match the local circumstances. Some State corporations also have the power to issue byelaws foe example railway companies can regulate behaviour on trains and at stations. For example, the ban of smoking on the London Underground was via a bye law.
Orders in Council these are made by the Privy Council and signed by the monarch (queen). They are used for powers of special importance relating to constitutional issues, for example, emergency powers but can be used for a variety of purposes, when statutory instruments would be inappropriate such as for transferring responsibilities between government departments. The Privy Council are a committee of ministers and other powerful people whose traditional duty is to advise the sovereign. The cabinet are all Privy Councillors. One common use of Orders in Council is to bring an act of part of an act into effect as most statutes do not become law on the day of the royal assent; instead they come into effect on the day appointed by the appropriate minister.
Identify and explain the advantages and disadvantages of delegated legislation (15 marks)
(B) There are many advantages of delegated legislation such as, Pressure upon Parliament, although the parliament has been known to create an act in 24 hours this is rare. As parliamentary procedures are cumbersome and complicated. Moreover Parliament does not sit for the whole year and there is often a great deal of pressure on the Parliament to fulfil a government’s law making programme. Because of the limited time available, parliament could not enact all the detailed rules and regulations required in a modern society. The use of delegated legislation to deal with the details leaves Parliament free to concentrate on debating and deciding major policy issues for new bills whilst allowing the details of law reform to be filled in later.
Technicality of subject matter, much of modern legislation is complex and technical. Using delegated legislation allows experts in the relevant field to become involved constructing more effective regulations. For example, health and safety regulations in different industries need expert knowledge.
To enable prompt amendments to the law, to keep up with social and technological change, laws must be frequently amended and updated. Amending an act of parliament is too long to meet this challenge. However, it is much easier and quicker to amend delegated legislation. Hence it can also be used to respond quickly to an emergency, or emergencies.
To allow for local variation, the power of local authorities to issue bye Byelaws, allows for necessary variation to meet specific local needs for example, parking regulations needs local knowledge.
Ministers can have the benefit of further consultation before regulations are drawn up. An example of this is the Disability Discrimination Act required statutory instruments to help implement it. There was consultation over the regulations that amplify the definition of disability.
However there are some disadvantages, in the form of criticisms, one of the main criticisms is that it takes law-making away from the democratically elected House of Commons and allows non-elected people to make law. This would be acceptable provided there was sufficient control but as noted above parliament’s control is fairly limited. Sometimes ministers have been given very wide discretionary powers and governments have been criticised for introducing important new laws through Delegates Legislation, without proper debates. Use of these powers has sometimes been described as a method by which government sidesteps Parliament and democratic accountability.
Another problem is that of sub delegation, which means that the law making authority is handed down another level. This leads to comments that much of our law is made by civil servants and merely ‘rubber stamped’ by the minister of that department. It also conflicts with the concept of separation of powers as not only will the appropriate department be given the power to make law it is the same department that is responsible for enforcing or administrating the law.
The large volume of delegated legislation gives rise to the criticism that it makes it difficult to discover what the present law is, this problem is aggravated by the lack of publicity as much delegated legislation is made in private, as appose to the public debates in parliament.
There is lack of effective supervision. Judicial review only occurs when an individual has the resources and determination to the challenge a particular law. It may be that many others have simply suffered in silence from the abuse of delegated powers. Also if a very wide discretion has been granted to the minister under an Enabling Act, the courts may be unable to challenge the laws created.
Parliamentary controls have been seen as problematic. The commons select committee on Procedure in 2000 made a number of critisms in a report published in 2000. It said ‘Statutory Instrument’s’ do not receive scrutiny in proportion to their merits. The current system works on the basis that ‘Statutory Instrument’s’ with affirmative procedure are automatically more worthy of debate than those with negative procedure. In fact some negatives are concerned with important matters and some affirmatives are concerned with trivial and uncontroversial matters procedure. Hence the time and expertise of MPs is often wasted considering trivial affirmatives whilst significant changes to the law may pass through unchecked and undebated via the negative procedure.
Another Disadvantage is that, Delegated Legislation shares with Acts of Parliament the same problem of obscure wording that can lead to difficulty in understanding the law.