In simpler terms, delegated legislation may have minimal publicity, the parliament’s control over the legislation is slight, the powers given may be extremely wide and delegated legislation prevents effective control by the courts through the ultra vires. For example, Petroleum Act 1987, gives Secretary State almost unlimited discretion to make regulations relating to abandonment of offshore gas and oil installation. This may possibly lead a minister in committing a constitutional impropriety. For example, to create regulations, which operate or attempt to impose a tax, without having to suggest authority to do this under the Parent Act. Considering the validity of such Regulations, the court will ensure that such a use of the powers fall within the clear intention of Parliament.
The particular dangers evolve from the Henry VIII Clauses; there is particular danger where a minister is given the power to amend primary legislation by delegated legislation (i.e. Sex Discrimination Act 1975, Deregulation and Contracting Out Act 1994). The Deregulation and Contracting Out Act has been criticised for giving ministers powers to abolish government regulations, by executive order without having to pass primary legislation, through Parliament. General use of delegated legislation clearly has its dangers particularly when used not simply for matters of detailed or technical nature, but to effect changes of substance in the law. It may also be argued that the more power is concentrated in the hands of the executive, the more it creates an opportunity for abuse. Consequently, it is considered important that the use of delegated powers is properly controlled.
One difficulty in ensuring adequate scrutiny of delegated legislation is that not all delegated legislation requires to be published. In case of Statutory Orders, any requirements as to publication will be stated in the enabling act. A general requirement to publish statutory instruments is contained in s.2 of the 1946 Act. Grant of wide discretionary power makes it much more difficult to control the exercise of power, as limits of the authority are not clearly stated. On the other hand, it is up to the Parliament, when passing enabling act, to give minister or other subsidiary body powers as wide or narrow as it chooses. If the resultant subordinate legislation goes beyond the limit of parent, then it will be possible to challenge it in court as being ultra vires.
This creates the legislation of including great advantages. One of the main advantages to delegate is that it saves parliamentary time. Parliament could not cope with the mass detail of legislation, which much of it is complex and technical; and keeping it up to date. Thus, allows Parliament to concentrate on principles. For instance, the Public Health (Aircraft) and (Ships) Regulations 1979 have helped prevent spread of communicable diseases in to the United Kingdom for some years, by providing specific controls to prevent danger to public health. It was introduced to ensure public health protection is maintained. The subject matter of much legislation is technical and highly complex. Not only would the atmosphere of the Parliament would be ineffective, but the principles, too, of the resultant legislation would be difficult to understand.
Therefore, the appropriate handling of complex subject matter makes it easier to consult experts during its formulation, than in the case of a primary legislation. The approach, which is implemented, includes the Health and Safety at Work Act 1974. Besides, it allows greater flexibility than primary legislation. For example, it allows for regional variations (Clean Air Act 1993). Lastly, delegated legislation can be implemented more quickly. For instance, the use of regulations varies from granting of emergency powers to cope with outbreaks of disease (Emergency Powers Act 1920). To ascertain immense control of delegated legislation, the legislation must be laid before the Parliament. The affirmative laying procedure achieves the most effective Parliamentary control over delegated legislation.
Nevertheless, effectiveness of the various laying procedure in ensuring control over delegated legislation is affected by the lack of parliamentary time; motions to approve or annul statutory instruments on floor of the House, are usually taken late in the day. A minister may refer a statutory instrument to a Standing Committee on the Delegated Legislation, although this can be blocked by objections from twenty members; and uncertainty as to result of non-complice with those procedures. Where there is a requirement that an instrument should be laid before Parliament, section 4 of the Statutory Instruments Act 1946, says the instrument shall be laid. Furthermore, it could be argued that the courts have a role to play to ensure that the government does not act illegally and exceed the limits of its power. It does however, sometimes, require the courts to consider the way in which a minister is exercising his discretion.
Hence, the courts are brought into the world of politics, where the judges resolve matters of policy. Case in point is in Hotel and Catering Industry Training Board v Automobile Proprietary Ltd [1969] 1 WLR 697, where a minister had a power to make regulations establishing a training board for person employed ‘in any activities of industry or commerce’ This did not permit him to make regulations relating to employees’ social or sporting clubs. Such regulations were ultra vires, the enabling Act. Some would claim that judges with narrow backgrounds should not have authority in these cases and that such matters should be left to our elected representatives. In spite of this, it is argued that because of our system, the government has such a tight control over Parliament, which cannot function as an effective check. Accordingly, it is inevitable that the delegated legislation is used frequently, on account of the convolution of the modern government.
