Discuss the advantages of delegated legislation as a form of law making.

Delegated Legislation refers to law made by another body rather than Parliament, but authorised to do so by Parliament. The three types of delegated legislation are statutory instruments, bylaws and orders in council.

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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.

Delegated legislation gives the Government powers to make changes to law without needing to push through a completely new Act of Parliament. This legislation is known as delegated or secondary legislation or subordinate legislation.

 

The original enabling or parent Act (also known as primary legislation) would have provisions that allow for future delegated legislation to alter the law to differing degrees. The three types of delegated legislation are Statutory Instruments, by-laws and Orders in Council.

 

Government ministers have delegated powers to create law using a Statutory Instrument under enabling Acts. Parliament has delegated powers to local authorities and other corporations to create law for specific areas using by-laws.. 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.

 

Parliament probably lacks the technical expertise or knowledge in specialist areas. It is an advantage for Statutory Instruments to be drafted by the legal department of the minister concerned. 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.

 

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.

 

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 are not subjected to the same extensive debates as Bills and can be made relatively quickly. They are passed by either using the 'super affirmative resolution procedure' ,affirmative procedure’ or the ‘negative resolution procedure'. This allows for greater flexibility when creating or amending delegated legislation. This is an advantage in that Statutory Instruments can be brought into effect more quickly than Bills which go through elaborate and time consuming stages before Parliament. However they do allow for some debate depending upon the procedure required for their adoption.

 

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 3,000 or so passed each year are made the subject of the ‘affirmation resolution’ procedure which involves some debate. Even then Parliament are unable to amend the Statutory Instrument, when it is debated they are only able to accept it as it is or have it annulled or withdrawn.

 

The Secondary Legislation Scrutiny Committee examines the policy merits of any Statutory Instruments or regulations laid before the House of Lords that are subject to parliamentary procedure. It is one of the many Parliamentary committees considering policy issues, scrutinising the work done and money spent by the government and looking at the proposals for primary and secondary legislation.

 

In addition government ministers are accountable and answerable to Parliament and the opportunity can be taken to ask questions of appropriate ministers about the use of their enabling powers. This allows matters of concern to be brought to the attention of the House and for the media to report on these matters. However this does not alter the fact that some MPs may not be aware of any potential issues with a newly introduced Statutory Instrument and therefore may not realise that there could be a need for a question to be put to the appropriate minister. The procedure does at least provide for some form of limited control and this can be argued to be an advantage.

 

Enabling Acts allow Parliament to approve of the principle framework of the legislation without the need for it to get bogged down with the minute procedures and details. This permits Parliament to remain in control and move on to more important matters leaving the finer points to be presented to Parliament at some later date when the exact detail has been worked out. If Parliament were not able to delegate in this way it would have even less time to deal with matters.

 

As a result it can be seen that one of the advantages of delegated legislation is that it enables Parliament to be more effective than it otherwise would be if it tried to deal with all kinds of legislation itself.

 

By nominating the procedure to be adopted when introducing the delegated legislation, Parliament is able to determine whether some form of debate is required at the time. The procedure adopted will no doubt depend upon the nature and importance of the rights involved so it can be argued that some degree of flexibility is retained in the system of delegation.

 

In the case of by-laws introduced by local councils for their area, these can also be seen to be democratic as council members are elected through local elections to serve a constituency within the relevant council area. A County Council can make by-laws affecting the whole county, whereas a District or Town Council will make by-laws for the district or town. The council must advertise the proposed by-law to allow local people to have an opportunity to comment, before applying to the Secretary of State for approval. Local authority by-laws are usually concerned with matters such as traffic management, parking and libraries.

 

Summary of the advantages of delegated legislation.

 

  • Saves time in Parliament. Parliament remains in control as Enabling Acts allow Parliament to approve of the principle framework of the legislation without getting bogged down with the minute procedures and details.

  • Delegated legislation gives the Government powers to make changes to law without needing to push through a completely new Act of Parliament. Legislation can be kept up to date.

  • Parliament probably lacks the technical expertise or knowledge in specialist areas. It is an advantage for Statutory Instruments to be drafted by the legal department of the minister concerned. Examples include health and safety regulations and taxation.

  • By-laws are made by local authorities who have local knowledge of the area concerned and will be in a better position to know what is needed.

  • In an emergency or when Parliament is not sitting legislation can be passed quickly. This can be achieved by the use of Orders in Council. For example an Order in Council was made during the fuel crisis in 2000 and enabled movement of fuel throughout the country. They were also used in 2004 to reclassify cannabis under the Misuse of Drugs Act 1971.

  • Orders in Council can be used to implement a European Union Directive quickly when Parliament is not sitting. The power to do this was given via the European Communities Act.

  • More flexible - can be made at any time whereas Acts have to be timetabled.

  • There is the scope for further consultation before regulations are drawn up which is important with technical regulations. In the case of any changes to the police Code of practice under the Police and Criminal Evidence Act 1984 there must be wide ranging consultations.

  • Unlike primary legislation, delegated legislation can be challenged in the High Court and they can quash the legislation because it has been created by non directly elected people and there must be limits in place to control their power.

BBC News - What can councils use by-laws for?

Whitehall's bread and butter

Committees A-Z

 

 

 

 

 

 

(Word count 967)

 

 

This essay discusses the advantages of delegated legislation.

The following points are discussed:

  • Parliament's time is limited;

  • Parliament's authority to others;

  • Parliament's lack of expertise-better left to those who have the expertise (statutory instruments);

  • Local authorities have local knowledge of the area- Parliament would not have such knowledge (bylaws);

  • times of emergency or when Parliament is not sitting (Orders in Council);

 

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