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Published: Fri, 02 Feb 2018
Delegated Legislation In English Legal System
This essay will define and discuss the meaning, importance and operation of delegated legislation in detail. It will discuss how it is controlled by Parliament and the Judiciary. The structure of the essay which will help achieve its aim is as follows. Firstly, delegated legislation will be presented and explained along side the doctrine of parliamentary sovereignty. The reference to the doctrine of parliamentary sovereignty is important because delegated legislature can only function within the realm of parliamentary sovereignty. The essay will then illustrate the necessity of delegated legislature and how it is controlled by Parliament and the Judiciary. This essay will state whether I believe delegated legislation is a threat to the doctrine of parliamentary sovereignty. The conclusion will summarise the main point.
Delegated legislation can be defined as the “law made by some person or body other than Parliament but with the authority of Parliament. The authority is usually laid down in a “parent” act of parliament known as enabling act which creates a framework of the law and then delegate’s power to others to make more detailed law in the area”. (Jacque line martin (2007) The English Legal System (5th edition).Italy hodder Arnold)One of the reasons for the introduction of Delegated legislatures was because there are some occasions whereby quick decisions were needed which could not wait for a parliamentary meeting. As a result of these the acts contain words to protect common law and are made within the realm of parliamentary sovereignty and Acts of Parliament. The practice of delegated legislation has been in existence for a long time .For example “After 1689 the annual mutiny acts delegated power to the crown to make regulations for the better government of the army. But it was not until the 19th century that delegation or wide legislative power became common”. (Aw Bradley and K D Ewing constitutional and administrative law 14th edition).
The doctrine of parliamentary sovereignty is the core element of the UK constitution. A.y Dicey described it as the “dominant characteristic of our political institutions”. (Aw Bradley and K D Ewing constitutional and administrative law 14th edition).It is said and shown that over the years the court has no authority to question the legitimacy of the statutes unless the correct procedure is not followed while passing the law. As a result of this Parliament is the supreme law making body and nobody can override its decisions.
There are three main forms of delegated legislation which are statutory instrument, by law, order of council. Statutory instrument are created by the government department for areas under their supervision. The parent act gives the department the authority and guideline on how the new legislation is to be implemented and drafted. For example using statutory instrument, the minister of transport was able to introduce the Local transport act 2008 whereby they dealt with the necessary road traffic regulation (www.opsi.gov.uk/acts/acts2008). Statutory instruments give the government departments the opportunity to introduce law and change law; and as a result of these around 3000 statutory instruments are introduced every year.
Bylaws are made by local authorities but have to be approved by the central government for example Bradford county council can pass laws affecting the county. Local bylaw will involve traffic control, parking restrictions. Bylaw can also be made by public corporation and certain companies within their jurisdiction. For example, the London underground introduced the non-smoking policy on the London underground stations.
Orders of council are made by the Lord of the Privy Council and are presented to the queen for final authority in time of emergency when Parliament is unable to meet and discuss under the 1920 emergency power act. All orders are supposed to have been made at the council chamber Whitehall (http://www.privy-council.org.uk)
. An example of orders in council is “the London Summit (Immunities and Privileges) Orders 2009 (SI). Under the international organization act 1968 This Order provides that representatives of sovereign Powers (other than the United Kingdom) whom the Secretary of State has accepted as members of the delegation for the purposes of this Order, will enjoy immunity from suit and legal process, including immunity from personal arrest or detention”. (http://www.opsi.gov.uk/si/si2009/uksi_20090222_en_1). Also during the July 7 bombing if there is a speculation that the parliament was next to being attacked the order of council would be the last resort.
Delegated Legislation is an inevitable feature of parliament and is necessary for a number of reasons. Firstly insufficient parliamentary time means that government does not have sufficient time to devote to every rule and act that is being introduced. If parliament attempts to enact all legislations a lot of legislations would not be accurately passed and the whole legislative machine would break down. As a result of this delegated legislation would enable legislations to be thoroughly debated whilst saving parliamentary time.
Secondly, delegated legislation enables laws to be made at a final pace. This is because the process involved in deciding and deliberating on a particular legislation can be quite long as the bill has to pass through several stages which could take months to attain.
Thirdly, the technicality of the subject matter is quite crucial as modern legislation often need the necessary technical provisions before it can be implemented. Handling legislative powers to government ministers and bodies tend to facilitate such provisions. Mps do not usually have the required knowledge on certain issues, whereas delegating legislation to specific ministers and government bodies means that experts in those areas are able to apply the required principle and knowledge needed to be included in the legislative programme as they are trained solely for that purpose. For example Jacqueline Martin once suggested that parliament should discuss the main idea in through depth but experts should be allowed to fill in the technical bit required(Jacqueline Martin. The English Legal System. 4TH Edition).
Another Argument as to why delegated legislation is necessary is because under delegated legislation laws can be amended or revoked quite easily by another statue. This is an important aspect because it is very crucial that laws are updated and future needs such as health provision and welfare benefits are met. This however highlights a great deal of flexibility in the system. However delegated legislature could be revoked if it proves problematic.
In addition to these delegated legislation is necessary because parliament do not always know the needs of the local people. Due to this factor local byelaws can only be made effectively with the knowledge of the locality. Awareness of local needs can be found with the new devolved assemblies for Scotland, Wales and Northern Ireland. These bodies have the power to make delegated legislation.
Delegated Legislation is controlled through parliament (via affirmative/ negative resolution procedures as well as through consultation, committee scrutiny, and the House of Lords) controls over delegated legislation also exist through the courts (via judicial review and the doctrine of ultra vires.
Under Parliamentary control statutory instrument can become law in two ways either through negative resolutions or through affirmative resolution. If statutory instrument is to become law through negative resolution, it has to have been drafted and should be presented to parliament within 40 days if it faces no motion of cancellation it becomes law immediately. However if an annulment motion is put down by the opposition party then the statutory instrument is debated in both Houses. If both houses still pass an objection then he delegated legislation is cancelled.
Through an affirmative resolution a statutory instrument cannot become law unless it is approved specifically by parliament. The procedure that takes place during affirmative resolution is that parliament will put down an order under the Parent Act instructing that the agendas should be discussed and members of parliament should be able to cast a vote on the issue before it becomes law. Under this procedure parliament may be required to vote for the approval of the delegated legislation. This system is quite effective as it does ensure that parliamentary pays attention to significant issues and public opinion is fairly represented since individual MP represent different constituency. However the weakness of this system is that Parliament can only vote on the legislation, it cannot amend the piece of legislation.
The Committees are in charge of reviewing the delegated legislation and informing Parliament on delegated legislation that requires special consideration including and legislation that allows statutory instrument to go ahead of its power. Such as imposing tax, or producing retrospective legislation which was not granted by the enabling Act, passing legislation that prohibits the court from challenging that piece of legislation. However the disadvantage of the committee is that it cannot revoke or amend a piece of legislation and may not consider the value of the legislation. “In the 1992 hansard report they concluded that ministerial findings are not taken seriously” (Jacqueline Martin. The English Legal System. 4TH Edition).
Delegated legislation is also controlled through consultation. Expert within the relevant field and those people who are going to be affected by the law are often consulted before the law is made. In the case of road regulations, Ministers are likely to consult motoring Organisations, local authorities before making the rule. “Under the National Insurance Act 1946 draft regulations must be submitted to the National Insurance Advisory Committee and any minister proposing to make rules of procedure for a tribunal within a department is required by the tribunals and inquires Act 1971 to consult the council on Tribunals” (Jacqueline Martin. The English Legal System. 4TH Edition).
The Parent Act impounds the control of statutory instrument to the commons but the House of lords is usually granted the same power of control as the common. “The procedure under the parliament Acts 1911 and 1949 for by-passing the lords applies to bills and not statutory instruments” (Aw Bradley and K D Ewing constitutional and administrative law 14th edition). However it is extremely uncommon for the House of Lords to use its veto over minor legislation. In 1968 the House of Lords rejecting an order containing sanction against the Rhodesian Government under the southern Rhodesian Act 1965.
Although the validity of a statute cannot be challenged by the court because of the doctrine of parliamentary sovereignty delegated legislation can be. It can be challenged under judicial review. Judicial review is where judges in the Queen’s Bench division of the High Court review the decisions of lower court such as tribunals. The court in most cases can overrule the decision if it agrees with the complaint. However the exception is Parliament whose act may be judged as incompatible but cannot be amended by the judge.
Ultra vires is one of the reasons why delegated legislation is scrutinized in the Court. This is where the procedure laid down in the enabling act for producing legislation has not been followed. An example of ultra vires occurred in R v secretary of state for education and employment. A High Court judge ruled that a statutory instrument setting conditions for appraisal and access to higher of pay for teachers was beyond the powers given under the Education Act 1996 as a result the statutory instrument was declared void. (Terence Ingman, the English Legal Process, Fourth Edition). This case highlights instances whereby delegated legislation could result in the abuse of power if not properly controlled.
The principle of substantive ultra vires is usually based on a claim that the statue under evaluation abuses the power granted by parliament under enabling act and as a result of these the courts are able to intervene to prevent abuse of power by public authorities. This occurred in the Commissioners of Custom and Excise V Cure and Deely Ltd (1962), where the power of the commissioners to make delegated legislation under the Finance Act 1940 was challenged. Under this Act the commissioners determined the amount of tax due where a tax return was submitted late however the High Court invalidated this and argued that the commissioners had given themselves powers far beyond what parliament had empowered, they were empowered only collect the amount of tax due. (www.parliament.co.uk) .This is another case which clearly shows that if delegated legislation is not effectively controlled many authorities will abuse the powers ultra vires. In this demonstration control by the courts has proved to be highly effective.
Also in the “R v secretary of state for social security, ex parte joint council for the welfare of immigrants (1996). Concerned the asylum and immigration appeal act 1993 which provided a framework for determining applications for asylum, and for appeals after unsuccessful applications. This allowed asylum seekers to apply for social security benefits while they were waiting for their applications or their appeal to be decided at a cost of over £200 million per year. In order to discourage economic migrants the then secretary of state for social security exercised his power to make delegated legislation under the social security act 1992 and produced regulations which stated that social security benefits would no longer be available to those who sought asylum after they had entered the UK rather than immediately on entry. The joint council for the welfare of immigrants challenged the regulations claiming they fell outside the power granted by the 1992 Act. The court of appeal upheld this claim stating that the 1993 act was clearly intended to give asylum seekers right which they did not have previously. The court ruled that parliament could not have intended to give secretary of state powers to take away the rights it had given in the 1993 Act. This could only be done by new Statues making the regulation Ultra vires” (Catherine Elliot and Frances Quinn English Legal System Fifth edition).
It could be argued that delegated is not a threat to parliament sovereignty this is because Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. (www.parliament.co.uk) Parliamentary sovereignty is defined by A V Dicey (1835–1922), in his book Law of the Constitution (1885), he argued that Parliament has ‘the right to make or unmake any law whatever . . . and . . . no person or body is recognised by the Law of England as having the right to override or set aside the legislation of Parliament’. As a result of these parliament is not bound by the decision of the court or by other decisions.
The doctrine of parliamentary sovereignty was upheld by Lord Reid in Madzimbamuto v. Lardner-Burke  1 AC 645:”It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the courts would not hold the Act of Parliament invalid.”(www.parliament.com).
Secondly, there are enormous controls to ensure the safeguard of parliamentary sovereignty. The Parent Act passed by Parliament outlines the parameter which delegated legislation can operate. Also there are Scrutiny Committee in both Houses of Parliament whose roles are to deeply scrutinize the bill that is about to be passed. In addition to these, some statutory instruments must be approved by Parliament before it becomes law this is known as affirmative resolution.
Examples of statutes which define the parliament sovereignty are, The Parliament Acts of 1911 and 1949 which establish the restraints to the powers of the House of Lords, also Local Government Acts establish and control the powers of local authorities; The Race Relations Acts establish equal rights for members of all races; The Scotland, Wales and Northern Ireland Acts of 1998-9 grant devolved powers to those countries; The Human Rights Act of 1999 incorporates the European Convention on Human Rights into British Law. (www.parliament.com).
On the other hand the increasing importance of delegated legislation is often an example of the growing ministerial power and the weakening of parliament in the law making process hence weakening of Parliamentary Sovereignty. An example of growing ministerial power is found in the provision of legislative and regulative reform bill 2006. Act to enable provision to be made for the purpose of removing or reducing burdens resulting from legislation and promoting regulatory principles; to make provision about the exercise of regulatory functions; to make provision about the interpretation of legislation relating to the European Communities and the European Economic Area; to make provision relating to section 2(2) of the European Communities Act 1972; and for connected purposes. (http://www.opsi.gov.uk/ACTS/acts2006/ukpga_20060051_en_1). This Act gives ministers enormous powers to amend legislation which they believe is outdated and incompatible with the system.
In addition to these it could be argued that delegated legislation is a threat to parliamentary sovereignty this is due to the lack of democratic involvement. The argument is that delegated legislation is usually made by civil servant and the position of parliament as the ultimate law making body has been transferred to unelected civil servant rather than elected politicians. Legislation being made by civil servants might not be seen as a particular issue since detailed administrative rules are being followed and parliament examining all legislation being passed would take up parliamentary time. However, in the latter years of last conservative government there was an increasing concern that important legislation were being passed by people who have mere knowledge of it and the whole principle of delegated legislation was being used to implement any policies. This however to some people does undermine the principle of parliamentary sovereignty.
Furthermore, despite the list of control that exists over delegated legislation the reality is that it is not effectively supervised. Firstly, given that not all legislations are publicised; and the general public re not enlightened on what delegated legislation is. As a result of this it is difficult to challenge it. This has an adverse effect on the power of the court since they can only decide and control legislation that is brought forward to them by the general public and judicial reviews relies on cases being brought forward to the court or even without the knowledge of parliament. The end result is that millions of legislations are passed without the go ahead of Parliament and general public are unable to bring them before the court of lack of knowledge.
A further problem is that some Enabling Act grant minsters wide discretionary powers phrase ministers have the powers to make regulations and bring it into operation means that it is very hard for anything to be considered ultra vires so judicial review can not be used by the court or parliament to amend the legislation or consider it in compatible to the parent act hence weakening parliamentary sovereignty.
Finally the affirmative resolution procedure ensures that parliament attention is drawn to important delegated legislation. Although the select committee is vital in scrutinizing the legislation but they are unable to consider the merits of delegated legislation.
In conclusion, in my opinion delegated legislation is not a threat to Parliamentary Sovereignty this is because under the enabling act all delegated legislation must be presented before parliament. This may involve positive or negative resolution procedure. In addition, to these the joint committee scrutinises all statutory instruments and decides which one deserves the attention of both Houses of Parliament. Furthermore, Judicial Review ensures that public bodies which implement law-making power are kept within the boundaries of the power bestowed upon them by statute. In regards to delegated law making powers it ensures that Parliamentary sovereignty is upheld. None of these would be possible without the Independence of the Judiciary under the Act of Settlement 1700. 00000
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