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Published: Fri, 02 Feb 2018
Doctrine of delegated legislation
Delegated legislation also referred to as secondary legislation, is legislation made by a person or body other than Parliament. Parliament, through an Act of Parliament, can permit another person or body to make legislation. An Act of Parliament creates the framework of a particular law and tends only to contain an outline of the purpose of the Act. By Parliament giving authority for legislation to be delegated it enables other persons or bodies to provide more detail to an Act of Parliament. Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit others to make law and rules through delegated legislation. The legislation created by delegated legislation must be made in accordance with the purposes laid down in the Act. The function of delegated legislation is it allows the Government to amend a law without having to wait for a new Act of Parliament to be passed. Further, delegated legislation can be used to make technical changes to the law, such as altering sanctions under a given statute. Also, by way of an example, a Local Authority have power given to them under certain statutes to allow them to make delegated legislation and to make law which suits their area. Delegated legislation provides a very important role in the making of law as there is more delegated legislation enacted each year than there are Acts of Parliament. In addition, delegated legislation has the same legal standing as the Act of Parliament from which it was created.
Importance of Delegated Legislation
There are several reasons why delegated legislation is important. Firstly, it avoids overloading the limited Parliamentary timetable as delegated legislation can be amended and/or made without having to pass an Act through Parliament, which can be time consuming. Changes can therefore be made to the law without the need to have a new Act of Parliament and it further avoids Parliament having to spend a lot of their time on technical matters, such as the clarification of a specific part of the legislation. Secondly, delegated legislation allows law to be made by those who have the relevant expert knowledge. By way of illustration, a local authority can make law in accordance with what their locality needs as opposed to having one law across the board which may not suit their particular area. A particular Local Authority can make a law to suit local needs and that Local Authority will have the knowledge of what is best for the locality rather than Parliament. Thirdly, delegated legislation can deal with an emergency situation as it arises without having to wait for an Act to be passed through Parliament to resolve the particular situation. Finally, delegated legislation can be used to cover a situation that Parliament had not anticipated at the time it enacted the piece of legislation, which makes it flexible and very useful to law-making. Delegated legislation is therefore able to meet the changing needs of society and also situations which Parliament had not anticipated when they enacted the Act of Parliament.
Criticisms of Delegated Legislation
Delegated legislation is not without its criticisms. Firstly, it has been suggested that by having delegated legislation to make and/or amend laws etc it lacks democracy as too much delegated legislation is made by unelected people. Secondly, delegated legislation is subject to less Parliamentary scrutiny than primary legislation. Parliament therefore has a lack of control over delegated legislation and this can lead to inconsistencies in laws. In addition, delegated legislation therefore has the potential to be used in ways which Parliament had not anticipated when it conferred the power through the Act of Parliament. One further criticism of delegated legislation is the lack of publicity surrounding it. When law is made by statutory instrument the public are not normally notified of it whereas with Acts of Parliament, on the other hand, they are widely publicised. One reason for the lack of publicity surrounding delegated legislation is because of the volume of delegated legislation made and this results in the public not being informed of the changes to law. There has also been concern expressed that too much law is made through delegated legislation.
Control of Delegated Legislation
There are controls in place in relation to delegated legislation to ensure that those who make law under it are doing it in an appropriate manner. Parliament exercises control over delegated legislation in that when the Act of Parliament is created, Parliament stipulate in the Act of Parliament the parameters with regard to delegated legislation. Further, there are scrutiny committees which consider delegated legislation within a Bill as it passes through the Houses of Parliament. Delegated legislation is also subject to control through the Court. A piece of delegated legislation can be deemed by the Court to be ultra vires. This means that the body that created the delegated legislation acted beyond the powers conferred to them by statute. An example where a body would have acted ultra vires would be if the delegated legislation goes beyond what Parliament intended or where the procedural rules to be followed in relation to the delegated legislation have not been followed. Any Court action which is brought challenging delegated legislation is done through the means of Judicial Review. If the Court finds that a piece of delegated legislation is ultra vires then that legislation can be declared void.
Types of Delegated Legislation
The following are the three main types of delegated legislation:
By Laws: They are made by Local Authorities to deal with matters within their particular locality.
Statutory Instruments: These are made by Government Ministers and they insert the detail to Acts of Parliament. Statutory Instruments make up the majority of delegated legislation that is made. Around 3,000 Statutory Instruments are issued each year
Orders in Council: They are made by the Queen on the advice of the Government and are usually made when Parliament is not sitting. They can be used by the Government in emergency situations.
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