Examining the advantages and disadvantages of Delegated Legislation, can it

2. (b) Examining the advantages and disadvantages of Delegated Legislation, can it

be considered an effective form of law making?

Delegated legislation has many advantages. One of the main advantages of delegated legislation is that it saves time so that Parliament can concentrate on broader policies rather than fine detail. This allows the Government to prioritise its Manifesto promises to the electorate. The time it takes to draft a piece of delegated legislation is much less than it takes for an Act of Parliament to be passed as law. It takes much less time to draft a 6 month tenancy agreement, for example, as compared to a whole new Landlord and Tenant Act.

Furthermore, as can be seen in the above example, delegated legislation can be more specific to either a locality or to a situation. Local councils and other organisations have the expert knowledge with which to draft legislation applicable to specific situations and localities. This is why Parliament chooses to delegate authority to them to create laws, albeit under strict supervision.

Indeed, there is constant supervision of delegated legislation, some aspects of which have been covered in the previous essay. These include judicial review and negative or positive resolution of Statutory Instruments.

Further supervisory control on Statutory Instruments comes from the Joint Select Committee or Scrutiny Committee of both Houses. A Statutory Instrument may be reported to this Committee if it goes beyond the powers conferred to it by the Parent Act, or if it imposes a tax (which is not allowed) or if it produces retrospective legislation by backdating an offence. These committees are more concerned with ...

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The Lords Committee on the Merits of Statutory Instruments is there to consider the substance and the implications of any instrument. The House of Lords also contains a Delegated Powers Scrutiny Committee to keep Parliamentary delegation of power under constant review.

Besides the strict controls placed upon delegated legislation, another advantage of such legislature is that it allows flexibility in an Act of Parliament – for example, in the rates of benefits that change over time. Delegating legislation to the relevant government department avoids the need to create a new Act of Parliament every time the rates of benefits change.

Also, delegated legislation allows for a quick response to change, mistakes or even emergencies (see the above essay for detail on Orders in Council to deal with emergency situations).

However, delegated legislation can be condemned on several fronts. For a start, it is a rather undemocratic form of law-making since it rarely goes through a voting system. Furthermore, the public and even the professionals may find it difficult to keep up with the volume of change, for delegated legislation outnumbers Acts of Parliament by five laws to one.

Even though delegated legislation must, by law, be published it is nevertheless not given the same public coverage as is an Act of Parliament and it can often be complex and confusing to understand.

Delegation may also allow people to avoid taking the blame for when things go wrong. Worse still, it may provide scope for sub delegation to persons who are not qualified or given authority to make new legislation. Technically, this is not allowed. However, the risk of sub delegation is increased when Parliament makes the decision to delegate power to legislate.

Nevertheless, whatever disadvantages there are to delegated legislation, it is very much a ‘necessary evil’ since it saves so much of Parliament’s time for more important matters and since it benefits from the specialist knowledge of various individuals and organisations. We must also remember that delegated legislation is always very closely supervised by Parliament. Even if, considering all the remaining disadvantages of delegated legislation, we wished to change the system, it would take years and years since delegated legislation is now just as integral to United Kingdom law as are Acts of Parliament. Perhaps it could even be called ‘inevitable’

Committee on Minister’s Powers (1932)