English Legal System - Acts of Parliament (Part 2)

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
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
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