Describe the need for delegated legislation.
Delegated legislation means that the Government can make changes to a law without the need for a completely new Act of Parliament.
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Delegated legislation means that Parliament does not have to take too much time out of its timetable to deal with every minute detail of the Act, it can concentrate on the aims of the Act. The technical knowledge of experts can be used and consultation can be made with the relevant interested parties.
Delegated legislation can be passed quickly and can be used to deal with emergency situations such as the Foot and Mouth epidemic. Delegated legislation is more flexible and can be amended more easily and quickly.
Delegated legislation allows more precise and accurate detail to be added at a later date.
Finally, local people with local knowledge can deal with matters which have an affect on their local area in the form of bylaws. We will now look at these points in more detail.
It is probably too simplistic to say that Parliament does not have the time to make endless legislation. Parliament only has a limited amount of time so there is a need for other bodies to create delegated legislation. One could argue that the government should be able to manage the programme of legislation that it wishes to introduce, and this will involve being practical about the amount of legislation that can realistically be included in any programme.
However, to be fair, we do have an opposition and it is also a political process so, pressures do come into play. For example, the government may feel that it is duty bound to act upon its party manifesto which, the government may say, amounts to a mandate to introduce reforms. In addition the government of the day will set out it's legislative programme for the session in the Queen's Speech, so the government may also feel that it's political credibility is on the line.
Further demands on Parliamentary time may come from the European Union in the form of directives. Directives cover many topicsincluding company law, banking and insurance. Directives are a secondary source of legislation. The EU use directives in order to achieve harmonisation of laws within Member States requiring them to achieve a particular result but giving each state a certain amount of discretion as to how the precise rules are to be adopted. This means that the government will in association with Parliament pass laws to bring the directives into effect. In a good number of cases this will be achieved through delegated legislation.
These demands upon Parliamentary time beg the question as to whether Parliament really has the time to debate and consider all the detailed regulations which need to be put in place to give effect to enabling Acts and are now included in delegated legislation – mainly in the form of statutory instruments. Probably not. It is also questionable whether it would be beneficial to think of trying to include the detail in an Act which would otherwise find itself in delegated legislation. This would probably be a retrograde step and would mean amending legislation every time the detail needed up dating.
There is a strong case for arguing that matters of detail are probably best left to the people who have the necessary expertise and knowledge required to put forward technical rules and regulations. At present, government ministers introduce statutory instruments in order to give effect to rules and regulations as authorised by the parent Act. Whilst this allows a minister to retain control over important government policy and functions it also enables those with the necessary expert knowledge to influence the legislation. MPs themselves would not necessarily have the required expertise and knowledge to frame the regulations themselves.
Not all legislation is introduced via Parliament, by-laws for example are created by local councils for the greater efficiency of their areas. Local council members are elected to serve on such councils and it is likely that they will have local knowledge of the area concerned and know what is best for their area. MPs do not necessarily have sufficient knowledge of such areas and in any event are elected to Parliament to represent the electorate in matters concerning government and the country as a whole. From a practical point of view, MPs are located at Westminster in London and, as such, could be said to be too remote from local concerns and considerations.
It may be necessary or desirable for consultation to take place prior to the introduction of legislation and, by delegating responsibility to other bodies, Parliament is able to devote more time to the stages involved in passing a bill in Parliament and this includes consideration of any consultations.
The power to create delegated legislation at a time when Parliament is not sitting has been granted to the Privy Council and the Queen. Parliament does not sit for some time in the summer recess for example and such an arrangement allows for matters of government to be dealt with whilst Parliament is not sitting. This will include the power to act speedily at times of emergency without the need to recall or wait for Parliament. In any event the time taken to pass legislation in Parliament can be considerable so this is another reason why another form of legislation in the guise of delegated legislation is needed.
The fact that there may be a need to amend regulations, for example financial limits in cases of benefit claims, should not mean it is necessary to repeal the main enabling Act itself which introduced the scheme. Delegated legislation allows greater flexibility to amend or repeal the provisions as opposed to an Act of Parliament.
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Summary of the needs for delegated legislation.
To free up Parliamentary time – not enough time for Parliament to deal with creating legislation in detail.
To deal with legislation when Parliament is not sitting – during the summer recess for example.
To speed up the process of legislation – delegated legislation does not have to be timetabled and does not have to go through the full parliamentary process.
Experts with the appropriate technical knowledge can be used to refine the details of the legislation.
Local knowledge is used when making bylaws which is likely to be more appropriate than relying on instructions from ministers based in London.
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.
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.
As always the links provided will enable you to do further research and enhance your understanding of delegated legislation.
Orders In Council
Advantages and disadvantages of delegated legislation
This essay will explain the advantages and disadvantages of delegated legislation.
Delegated legislation is law made by some person or body other than parliament, but with the authority of parliament. What the Government has often done, therefore, is to pass an ‘enabling Act setting up the main framework of the reform on which it has decided, and then empowering some subordinate body ,often a Minister to enact the detailed rules necessary to complete the scheme. An example of enabling Acts includes the Criminal justice Act 2003 which gives the Secretary of State the power to make delegated legislation in several areas. One of these powers enables code of practice to be created for the use of conditional cautions. A conditional caution is used instead of taking an offender to court.
There are three different types of delegated legislation. These are:
1) Orders in Council – made by Crown and Privy Council.
2) Statutory instruments – made by Government Ministers.
3) Bylaws – made by local authorities and public corporations.
ADVANTAGES OF DELEGATED LEGISLATION
Parliamentary time is saved on relatively trivial matters. Local knowledge is usually desirable in deciding what local by- laws should be passed. This task, therefore, is given to the local authorities. Delegated legislation is far quicker to introduce than an Act of Parliament. This can be an advantage in instances when emergencies or unforeseen problems require laws to be changed. The detail of the delegated legislation can be dealt with by the appropriate minister, leaving Parliament as a whole more time to focus on the general principles of the enabling Act.
Delegated legislation by its very nature concerns specialist technical and/or local knowledge. So it is an advantage for such specialist provisions to be dealt with by those who have this knowledge rather than by Members of Parliament who generally would not have the required specialist or local knowledge.
Delegated legislation is more flexible than an Act of Parliament. It is far simpler to amend a piece of delegated legislation than to amend an Act of Parliament.
DISADVANTAGES OF DELEGATED LEGISLATIONS
The main criticism of delegated legislation is that it takes law making away from the democratically elected House of Commons. Instead, power to make law is given to unelected civil servants and experts working under the supervision of a Government minister.
Accountability issue is the problem that the authority vested in Parliament to make law is delegated away from Parliament, possibly through a number of ‘layers’, for example, to a Government Minister and to a department and then possibly again to a group of experts.
The accountability issue is the problem of adequate scrutiny. The detailed, technical and specific nature of much-delegated legislation means that, on the whole, Members of Parliament do not have the expertise to consider proposed legislation effectively.
The large volume of delegated legislation produces about 3000 statutory instruments each year which means that it is very difficult for Members of Parliament, let alone the general public, to keep up to date with the present law. This is exacerbated by the fact that delegated legislation is made in private.
Although there are advantages in delegated legislation, the disadvantages all concern the issue of accountability because delegated legislation takes law making away from the democratically elected House of Commons.
- Jacqueline, M (5th edition) The English Legal System
- Marsh & Soulsby (Third Edition) Outlines of English Law
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