Delegated Legislation Essay
Why is Delegated Legislation Needed?
Lack of Parliamentary time
Allow detail to be added at a later date
Makes use of local knowledge, i.e. bylaws (Local laws for local people!) Makes use of expert technical knowledge
Easier to amend than an Act of Parliament
More time can be taken to consider secondary legislation
Types of Delegated Legislation
Bylaws – Made by local authorities (For example Borough Councils) to deal with matters which affect their local area.
Statutory Instruments – Made by Government Ministers, usually to add the detail to a piece of primary legislation, these ususally affect the whole country.
Orders in Council – Made by the Queen and Privy Council. These are made when Parliament is not sitting, usually in emergency situations.
The Control of Delegated Legislation
Control by Parliament
The enabling (or parent) Act sets limits on the power given to bodies to pass delegated legislation The Affirmative Resolution procedure requires some statutory instruments to be voted on by Parliament. The Negative Resolution procedure means that most statutory instruments become law unless a debate is requested by a Member of Parliament (MP). The Scrutiny Committee considers whether the provisions of a Bill give inappropriate 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 need to be considered. 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.