Delegated Legislation
There are over 2,000 sets of rules and regulations made by Ministers or the Crown in Council, or other central rule-making authorities every year
Delegated legislation is under the authority of powers delegated by Parliament
There are three (3) main forms of delegated legislation; Statutory Instruments, Bye-laws and Orders in Council
Statutory instruments are made by government departments
Bye-laws are made by local authorities, public and national bodies and they have to be approved by the Government
Orders in Council are drafted by the relevant Government department in the times of emergency and are approved by the Privy Council and then signed by the Queen
There are over 2,000 sets of rules and regulations made by Ministers or the Crown in Council, or other central rule-making authorities every year
Delegated legislation is under the authority of powers delegated by Parliament
There are three (3) main forms of delegated legislation; Statutory Instruments, Bye-laws and Orders in Council
Statutory instruments are made by government departments
Bye-laws are made by local authorities, public and national bodies and they have to be approved by the Government
Orders in Council are drafted by the relevant Government department in the times of emergency and are approved by the Privy Council and then signed by the Queen
The reasons for delegated legislation
Delegated legislation is considered a valuable source of law. The reasons for delegated legislation are:
Insufficient parliamentary time – there is not enough time for the Parliament to debate every detailed rule
Speed – rules may be made more quickly than by Parliament as it does not sit all the time and as its procedure is slow and cumbersome, delegated legislation often made in relation to emergencies and urgent matters
Technicality of the subject matter – MP’s do not usually have the technical knowledge required in drafting modern, detailed legislation containing technical provisions. Delegated legislation may use experts from the appropriate fields.
Need for local knowledge – Only way to make effective bye-laws is to have knowledge of the locality. Good example of such is the assemblies of Wales, Scotland and Northern Ireland which have powers to make delegated legislation
Flexibility – In contrast to statutes, delegated legislation may be put into action quickly as well as be revoked if proved problematic
Future needs – Parliament is not capable to foresee possible problems arising from statutes and therefore delegated legislation is needed to remedy such issues
Limits on Delegated Legislation
Control of delegated legislation is subject to range of controls in order to safeguard against possible abuse of the powers given to the non elected representatives:
Consultation – experts are often consulted in drafting delegated Legislation and the relevant statute may state that consultation is obligatory as well as identifying the authorities that should be consulted
Publication – all delegated legislation is published and available for scrutiny
Supervision by Parliament – the Parliament may supervise delegated legislation in a number of ways such as revocation, affirmative resolution procedure, negative resolution procedure, committee supervision, questions from MPs and by the House of Lords
Control by the Courts – Judicial Review. Delegated legislation may be challenged for a judicial review on the grounds of – Procedural ultra vires, Substantive ultra vires and unreasonableness
Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushroom Ltd [1972] 1 All ER 280
An order was declared invalid because the requirement to consult with the interested parties had not been properly complied with. (procedural ultra vires)
Customs and Excise Commissioners v Cure and Deely Ltd [1962] 1 QB 340
The powers to make delegated legislation by the Commissioners under the Finance Act 1940 were challenged and the High Court invalidated the regulation on the grounds that the Commissioners had given themselves powers beyond what the Parliament had intended. (substantive ultra vires)
Criticism of Delegated Legislation
There are number of issues which may be considered as weaknesses of delegated legislation such as lack of democratic involvement, overuse, sub-delegation and lack of control
Lack of democratic involvement - criticism raised due to the fact that delegated legislation is usually made by civil servants and not by elected politicians
Sub-Delegation - legislation made often by people other than the ones given the original power to do so
Lack of control - effective supervision is difficult regardless of the controls available as individuals often are unaware of the existence of delegated legislation
Delegated legislation is considered a valuable source of law. The reasons for delegated legislation are:
Insufficient parliamentary time – there is not enough time for the Parliament to debate every detailed rule
Speed – rules may be made more quickly than by Parliament as it does not sit all the time and as its procedure is slow and cumbersome, delegated legislation often made in relation to emergencies and urgent matters
Technicality of the subject matter – MP’s do not usually have the technical knowledge required in drafting modern, detailed legislation containing technical provisions. Delegated legislation may use experts from the appropriate fields.
Need for local knowledge – Only way to make effective bye-laws is to have knowledge of the locality. Good example of such is the assemblies of Wales, Scotland and Northern Ireland which have powers to make delegated legislation
Flexibility – In contrast to statutes, delegated legislation may be put into action quickly as well as be revoked if proved problematic
Future needs – Parliament is not capable to foresee possible problems arising from statutes and therefore delegated legislation is needed to remedy such issues
Limits on Delegated Legislation
Control of delegated legislation is subject to range of controls in order to safeguard against possible abuse of the powers given to the non elected representatives:
Consultation – experts are often consulted in drafting delegated Legislation and the relevant statute may state that consultation is obligatory as well as identifying the authorities that should be consulted
Publication – all delegated legislation is published and available for scrutiny
Supervision by Parliament – the Parliament may supervise delegated legislation in a number of ways such as revocation, affirmative resolution procedure, negative resolution procedure, committee supervision, questions from MPs and by the House of Lords
Control by the Courts – Judicial Review. Delegated legislation may be challenged for a judicial review on the grounds of – Procedural ultra vires, Substantive ultra vires and unreasonableness
Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushroom Ltd [1972] 1 All ER 280
An order was declared invalid because the requirement to consult with the interested parties had not been properly complied with. (procedural ultra vires)
Customs and Excise Commissioners v Cure and Deely Ltd [1962] 1 QB 340
The powers to make delegated legislation by the Commissioners under the Finance Act 1940 were challenged and the High Court invalidated the regulation on the grounds that the Commissioners had given themselves powers beyond what the Parliament had intended. (substantive ultra vires)
Criticism of Delegated Legislation
There are number of issues which may be considered as weaknesses of delegated legislation such as lack of democratic involvement, overuse, sub-delegation and lack of control
Lack of democratic involvement - criticism raised due to the fact that delegated legislation is usually made by civil servants and not by elected politicians
Sub-Delegation - legislation made often by people other than the ones given the original power to do so
Lack of control - effective supervision is difficult regardless of the controls available as individuals often are unaware of the existence of delegated legislation
