Discuss the advantages and disadvantages of delegated legislation

The government of the day will have an agenda or legislative programme. This will keep Parliament busy and leave it only a limited time to deal with everything. This leads to some legislation being delegated.

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Parliament’s time is limited.  The government of the day will have an agenda or legislative programme. This will keep Parliament busy. So much so that Parliament will not be able to find the time to scrutinise and debate complex and technical rules and regulations.

Parliament has therefore authorised others to introduce legislation.  This legislation is known as delegated or secondary legislation.  Parliament has delegated powers to local authorities and other corporations to create law for specific areas using by-laws.  Government ministers have delegated powers to create law using Statutory Instruments under enabling Acts.  The Privy Council with the approval of the Queen has been authorised under the Emergency Powers Act 1920 to create legislation by making Orders in Council.

The advantages of delegated legislation are as follows:

Parliament probably lacks the technical expertise or knowledge in specialist areas.  Members of Parliament do not need to have any particular expertise or qualification to stand for election. Examples include health and safety regulations.  These may need to cover a range of different industries so it is better to leave it to those who have expert knowledge.  Other areas where technical and complex regulations may be required might include taxation, planning and environmental protection and pollution. Such expertise is available to government departments and government advisers and the use of such delegated legislation as Statutory Instruments and Orders in Council enables government ministers to conduct government business more effectively than if they were required to take up Parliament's time. This will enable the government of the day which has, subject to the confidence of Parliament, the task of drawing up a legislative programme to give effect to government policy in accordance with any manifesto they may have.

The benefit of the use of local by-laws is that they are made by local authorities who will have local knowledge of the area concerned and will be in a better position to know what is appropriate for a particular area.  Parliament would not have such local knowledge whereas elected councillors should be more familiar with local issues.
Parliament does not have the time to introduce all forms of control and legislative measures and this includes byelaws. The power to make byelaws has therefore been delegated to other appropriate bodies under the control of Parliament.  These bodies include local authorities to cover local matters within their administrative area and area of responsibility.  This power has also been given to public corporations and certain companies in order to better control and regulate matters involving the public within their jurisdiction.  Such organisations include public utility and public transport companies and airport authorities.

Matters of only local concern ought to be the subject matter of byelaws.  Examples of local issues might include parking restrictions, dog fouling of footpaths or regulations to do with parks and recreation grounds. Examples of byelaws introduced by corporations include regulations and restrictions placed on people who use their facilities and services. The London Underground has introduced a non-smoking byelaw covering the London underground network.  Airport authorities have introduced byelaws covering such activities as parking and security. Such organisations will have specific know;edge and experience about what forms of control are needed for the safe and effective operation of their services.

There are times either in an emergency or when Parliament is not sitting when legislation is needed and needs to be passed quickly.  This can be achieved by the use of Orders in Council. Statutory Instruments can also be made relatively quickly as long as Parliament is sitting. Statutory Instruments are not subjected to the same extensive debates as Bills.  They are passed by either using the ‘affirmative procedure’ , 'super affirmative procedure' or the ‘negative resolution procedure'.  This allows for greater flexibility when creating or amending delegated legislation whilst allowing Parliament to control the method of approval.

There are a number of disadvantages associated with delegated legislation.

One of the criticisms is that such legislation comes about as a result of undemocratic procedures and processes.  In the case of by-laws one can argue that those are democratic in the sense that they are made by elected bodies, i.e. local councils.  In addition they can only create bylaws in so far as they have been given power to do so under an enabling Act such as the Local Government Act. Local councils are also ultimately accountable to Parliament.

It could be argued that Statutory Instruments are less democratic in the sense that any opportunities for publicity and debate are limited.  Only a few Statutory Instruments out of the 3000 or so passed each year are made the subject of the ‘
affirmation resolution’ procedure which involves some debate.  The vast majority come about under the ‘negative resolution’ procedure which does not involve any debate.  One could argue that government ministers are accountable and answerable to Parliament and that the opportunity can be taken to ask questions of appropriate ministers about the use of their enabling powers.

The requirement to apply a higher level of procedure must be made within 30 days of the date the draft order is laid. Under the super affirmative procedure the appropriate committees of either House has 60 days to make resolutions and recommendations to the draft order. At the end of the 60 days the Minister has to note the recommendations, resolutions or representations made and then has to prepare a statement for Parliament about these representations. At this time the Minister can choose either to go ahead with the draft order without amendment or lay a revised draft which will be subject to the normal affirmative procedure. 

In the time between the Minister laying the statement or the original draft with any changes and the approval being given, either house, via the appropriate scrutiny committee, can recommend that the order should not proceed.  If this happens the only way it can proceed is for the relevant House to reject the recommendation in the same session.

Therefore it can be said that in the case of higher level procedure there are some democratic processes operating but otherwise a noticeable feature is the apparent lack of debate and publicity associated with this form of secondary legislation. Delegated legislation can be said to be less democratic and the opportunities for public comment and objection is reduced. In the case of government bills there is likely to be a consultation process conducted through the now settled practice of issuing Green papers and White papers. Such consultations have the effect of engaging the public, charities and other agencies in what is proposed in advance of the finalisation of the legislation.

There are a number of Scrutiny Committees set up by Parliament but these lack real power and only have authority to make recommendations. The Joint Select Committee in particular keeps all statutory instruments under review but it only carries out a limited technical review.  It does not have the power to take issue with policy matters.

Concerns can arise over what are known as 'Henry Vlll' clauses which can give powers under secondary legislation to amend or repeal an Act of Parliament itself. Such concerns have arisen recently under the Great Repeal Bill which is intended to safeguard current legislation adopted as a result of our membership of the EU but appear to give wide powers to ministers to deal with legislation in the future. These concerns involve principles about the relationship between the executive and the legislature and the prospect of the wide delegated powers in the Bill including controversial Henry VIII powers to amend or repeal primary legislation by delegated - or secondary - legislation with inadequate scrutiny procedures for the ways these powers might be exercised by ministers. 

Such these concerns have led to suggestions that any such powers should be the subject of tighter restrictions. Proposals for a tougher Delegated Legislation Scrutiny Committee with stronger powers has also be put forward.

Sub delegation can be a problem.  This arises when the body responsible for creating legislation does not do so directly but sub delegates, i.e. gives the job to some other party.  The problem with this is that the other party is not accountable in the same way.  Obviously Parliament is careful to only delegate powers to individuals or bodies that are controlled and supervised by Parliament.  There seems to be the need for care when drafting the enabling powers, reserving them only to specific parties, but at the same time encouraging greater consultation with experts in their field.

Finally there is the disadvantage that control by the courts is limited.   Control and supervision by the courts is carried out by the process of judicial review.  Such applications are made to the Queens Bench Divisional Court.  The basis of the challenge is that the statutory instrument is ultra vires i.e. goes beyond the powers that were granted by Parliament under the enabling Act (for example R v Home Secretary, ex parte Fire Brigades union (1995), R v Secretary of State for Education and Employment, ex parte National Union of Teachers(2002)).The effect of such a declaration is to make the legislation void and ineffective.  The courts have no power to correct the legislation. If the correct procedures such as consultations are not followed delegated legislation can also be declared ultra vires (Aylesbury Mushroom case (1972)).

Another limitation is that the courts ability to review such legislation is dependant upon individuals making a claim and bringing the matter to the attention of the courts, the courts do not have any general power to keep such legislation under review.  The Courts do not hold a watching brief and cannot act proactively. The process is time consuming and costly and such reviews can only be conducted if an individual claims to be affected and is willing and has the necessary funds to bring a claim.


(Word Count 1666)

Ultra Vires 

Delegated Legislation 


As always the links provided will enable you to do further research and enhance your understanding of delegated legislation.

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