Delegated Legislation

Date: Monday, 13 April 2015

Delegated Legislation - Evaluation Lesson Outcomes: Describe the advantages of delegated legislation

Specification Link: Advantages and disadvantages of delegated legislation.

Describe the disadvantages of delegated legislation

Starter: Try to recall 3 advantages of delegated legislation

1

The Task Each pair has a card with either an advantage or disadvantage of delegated legislation written on it. 1) Summarise the advantage/disadvantage in your own words 2) Swap with a neighbour!

Advantage #1 – Time Saving • Delegated legislation saves Parliament time. • There is often only enough time in the parliamentary session to • pass all Government Bills introduced. • There is very little time left for other types of Bills - 3,000 statutory instruments • Delegated legislation can be passed quickly - emergencies. • Parliamentary procedure would take too long • This would be wholly inappropriate and ineffective in emergency situations. 3

Advantage #2 – Specialist knowledge • People with specialist knowledge are involved in the preparation of delegated legislation. • Parliament does not necessarily possess this specialist knowledge. • E.G. local councils have greater knowledge of the local area. (Devil’s Bridge) • Government Ministers and their civil service departments have considerable technical knowledge within their particular area of • responsibility. (e.g. Cableway Installation Regulations 2004, made by the Transport Minister in order to comply with a European Directive, required detailed technical knowledge of cablecars, drag lifts and ski lifts, etc.) 4

Advantage #3 – Parliamentary control • There is some control over delegated legislation . • Statutory instruments are subject to affirmative or negative resolutions or are scrutinised by the Scrutiny Committee. • By-laws must be approved by the relevant Minister • A judge can declare any delegated legislation which has gone beyond its powers void. • This range of control should ensure that all delegated legislation conforms to the requirements of the parent Act and therefore the will of Parliament. 5

Advantage #4 – Democratic • To an extent, democratic because Government Ministers, who are responsible for issuing statutory instruments and who also approve bylaws, are elected. • Local councillors, responsible for making by-laws, are also elected. • Orders in Council are drafted by the Government, though they are approved by the Queen and Privy Council, neither of which is an elected body.

6

Disadvantage #1 – Partly Undemocratic • To an extent undemocratic. • Delegated legislation is not debated by Parliament, the exception being those statutory instruments subject to the affirmative resolution procedure. • Statutory instruments are drafted by unelected, permanently employed civil servants and often only rubber-stamped by the appropriate Minister. • As discussed above, the Queen and Privy Council are not elected yet approve Orders in Council.

7

Disadvantage #2 – Lack of publicity • Delegated legislation is insufficiently publicised. • Because delegated legislation is not debated by Parliament there is not the same opportunity for the press to raise public awareness of it as there is with an Act of Parliament. • This, added to the fact that there is no general effective way to publicise delegated legislation, means that an enormous volume of law is passed without the public being aware of it. • Much remains unpublicised after coming into force.

8

Disadvantage #3 – No effective control • There is lack of proper control. • Many of the parliamentary and judicial controls are limited in effect. For example, not all statutory instruments are subject to an affirmative or negative resolution and those subject to the latter may be overlooked. • Judicial controls are dependent on a person challenging the validity of the law, which due to limited knowledge, finance and time, rarely occurs. • Consequently some delegated legislation that is ultra vires is never challenged, and so remains in force.

9

Disadvantage #4 – Contradicts separation of powers • Some delegated legislation offends the doctrine of separation of powers. • No-one should be a member of more than one of the three branches of power, and the three branches should operate separately from each other. • They should not perform each other's duties. The executive is the Government and is responsible for formulating policy. • In theory Government Ministers should not also be making law. • The legislature is the Houses of Parliament and is responsible for making law. • The judiciary should ensure the law passed by Parliament is applied. • According to this theory they should not be declaring whether the law is valid or not.

10

Disadvantage #5 – Risk of sub-delegation

• There is a risk of sub-delegation where the body or person who has been given the power to make law may pass this power down to another. • For example, statutory instruments are supposed to be made by Government Ministers. • In reality they often merely rubber-stamp laws actually made by their civil servants. 11

Pulling it all together! “Describe the advantages and disadvantages of delegated legislation”