Discuss the disadvantages of delegated legislation.

The government of the day will have an agenda or legislative programme which 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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Because Parliament’s time is limited and the government of the day will have an agenda or legislative programme, Parliament will be kept 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 and 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.

 

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 by-laws 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 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to amend the statutory instrument, when it is debated they are only able to accept it as it is or have it annulled or withdrawn.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 vast majority come about under the ‘negative resolution’ procedure which does not involve any debate. In these circumstances the Statutory instrument will become law after a period of time, usually 40 days, unless Parliament rejects it. This means that Parliament keeps control because an MP can ask for it to be annulled, but it will not be debated unless there is a motion to annul the delegated legislation within the time-scale. The delegated legislation will not become law if the House of Lords or House of Commons passes an annulment motion.

 

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. 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 might not realise that there may be a need for question to be put to the appropriate minister.

 

Another noticeable feature is the apparent lack of debate and publicity associated with this form of secondary legislation. Indeed the enabling Act may well be the subject of some public debate and consultation whereas delegated legislation by its very nature will be much more wordy and involved and more complex, meaning that it will not be so easily understood or accessible to the public.

 

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.

 

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. This can be delegated through a number of 'layers' from a government minister on to a department and on again to a team of experts. The Trafalgar Square by-law was made by The Mayor of London acting on behalf of the Greater London Authority. Obviously Parliament is careful to only delegate powers to individuals or bodies that are controlled and supervised by Parliament.

 

Many would claim that this means that civil servants are responsible for much of our law making and they are not elected by, or accountable to, members of the public. 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.

 

Another disadvantage that arises from the use of experts is that the wording of the delegated legislation can be technical and obscure making it difficult to understand, a trait shared with Acts of Parliament.

 

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 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. These limitations would appear to severely limit the effectiveness of judicial review as a remedy.

 

Applications for judicial review are therefore completely ad hoc in their nature in that they do not form part of any systematic review. An application for judicial review is completely dependant upon an individual feeling sufficiently aggrieved over the matter to instigate an application. This means that the individual must be prepared to finance the application and as the application is made to the Queen's Bench divisional Court – not everybody will have the funds to commence such proceedings.

 

As we have already noted delegated legislation is not very well publicised and unless and until the matter is brought to the attention of the courts and the legislation found to be ultra vires, meaning void and ineffective, the legislation will operate and take effect as intended. Any problem or doubt about the legislation may go unnoticed or, even if it does come to light, an individual may not have the time or resources to pursue the matter so that the court may not have the opportunity to review the legislation.

 

In the event that the court's conclusion is that the legislation must be declared ultra vires and of no effect this will bring certainty in that sense, but that may not provide a complete answer to the problem. The decision may leave the law uncertain. The court are not empowered to intervene and impose their own version of the law so they must leave it for Parliament or government ministers to put the problem right. This may take time and in the meantime the lack of certainty may cause problems for those who may feel that they are affected by the court's ruling of ultra vires.

 

The sheer volume of delegated legislation is a problem in itself. There are some 3,000 SIs created each year making any scrutiny of this form of legislation a real practical problem. As Parliament’s time is limited it stands to reason that they would not have the time to deal with any meaningful scrutiny themselves. This would defeat the object of delegation in the first place. Parliament has, in any event, only delegated powers to bodies which are under Parliament's control. This arrangement must surely minimise the risk of a serious abuse of delegated powers. Such is Parliament's workload that forms of delegation are probably here to stay but there are areas for improvement and these might include increasing the public's awareness and knowledge about the nature of the delegated legislation that is being introduced.

 

(Word Count 1285)

 

Summary of disadvantages of delegated legislation.

  • Legislation comes about as a result of undemocratic procedures and processes. The process is taken away from the democratically elected House of Commons. Opportunities for publicity and debate are limited.

  • By-laws are more democratic in the sense that they are made by elected bodies, i.e. local councils.

  • Civil servants become responsible for much of our law making and they are not elected by, or accountable to, members of the public.

  • Sub delegation can be a problem Legislation can be delegated through a number of 'layers' from a government minister on to a department and on again to a team of experts.

  • The use of experts means that the wording of the delegated legislation can be technical and obscure, making it difficult to understand, a trait shared with Acts of Parliament.

  • The volume and lack of publicity of delegated legislation makes it difficult to find out what the up to date law is.

  • 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. However it is dependant on 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.

 

Brief Guide: Delegated legislation – Parliament

In this essay we discuss whether delegated legislation is:

  • Based on an undemocratic system;
  • Subject to sufficient debate and publicity;
  • Sufficiently scrutinised by Parliament;
  • Subject to too much sub-delegation.

The essay looks at the problems caused by the sheer volume of Statutory Instruments and the effectiveness of judicial review as a remedy.

 

There are links and other essays to help with your understanding of delegated legislation.

 

(Word Count 1285)

 

 

 


 

 

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