Delegated Legislation: Necessity, Control, and Controversies

Why is Delegated Legislation Needed?

Absence of Parliamentary time
Permit information to be included at a later date
Utilizes regional understanding, i.e. laws (Local laws for regional individuals!) Utilizes professional technical understanding
Simpler to modify than an Act of Parliament
More time can be required to consider secondary legislation
Kinds Of Delegated Legislation

Laws - Made by local authorities (For instance Borough Councils) to deal with matters which affect their city.
Statutory Instruments - Made by Government Ministers, usually to add the detail to a piece of main legislation, these ususally impact the entire nation.

Orders in Council - Made by the Queen and Privy Council. These are made when Parliament is not sitting, usually in emergency situation circumstances.

The Control of Delegated Legislation

Control by Parliament

The enabling (or parent) Act sets limits on the power provided to bodies to pass delegated legislation The Affirmative Resolution procedure requires some statutory instruments to be voted on by Parliament. The Negative Resolution treatment indicates that a lot of statutory instruments become law unless an argument is asked for by a Member of Parliament (MP).

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The Scrutiny Committee thinks about whether the provisions of an Expense give unsuitable law making powers to other bodies. The Joint Select Committee on Statutory Instruments reviews all statutory instruments and brings to the attention of Parliament any points that require to be thought about. Government Ministers are accountable and can be questioned by Parliament.

Control by the Courts

Delegated Legislation can be challenged in the courts under the doctrine of ultra vires.

(Beyond the power). Delegated Legislation may be substantive ultra vires R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2002) or procedural ultra vires Aylesbury Mushrooms (1972).

If the court decides that a piece of delegated legislation is ultra vires the legislation can be declared void.

Criticisms of Delegated Legislation

Lack of democracy - Too much delegated legislation is made by unelected people i.e. civil servants. Lack of publicity - The public are often unaware of new law which is introduced by statutory instruments. Over use - Too much law is made through the use of delegated powers. There is inadequate parliamentary control over delegated legislation.

Arguments in Favour of Delegated Legislation

Saves Parliamentary time. Local Authorities can make appropriate laws to meet local needs. Detail can be added to Statutes at a later date.