Explain how and why parliament delegates to other bodies the power to make legislation. (15 marks).
Delegated legislation is law made by subordinate bodies, with the authority of parliament. Therefore can be called subordinate or secondary legislation.
Parliament only sits for thirty weeks of the year meaning that there isn’t enough time for everything to be done. This authority is given in an ‘enabling act’, otherwise known as a ‘parent act’ which are both acts of parliament. There are three types of delegated legislation given through the above act. Orders in council, which is a special type of statutory instrument, used by the queen and the Privy Council in an emergency, under the Emergency Powers Act 1920.
Usually used when parliament aren’t sitting and in times of an emergency. Byelaws, which are made by local authorities, public bodies or national ised bodies. A draft form must be submitted for checking and to be approved by a government minister. An example of a byelaw would be Railways Act 1993; through this they made the no smoking in the underground ban.
Lastly, statutory instruments which can also be known as ministerial regulations. These are made by minister and government departments that are given authority to make regulations for the particular area that they are responsible for. An example of one of these would be the Disability Discrimination Act 1995 which gives the health minister authority to make regulations concerning requirements of services for disabled and discrimination regarding employment. Delegated legislation accounts for a large part of legislation because around three thousand statutory instruments are passed per year compare to around sixty to seventy acts passed in the same amount of time. The need for more detailed statutory instruments is getting greater and greater as the economy expands. The welfare state, education system, licensing laws, National Health Service, traffic road laws, Human Rights, Health and Safety, European Union have all changed as the population has increased.
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Therefore laws need to be more detailed and specific. Obviously this takes time, time that parliament doesn’t have so therefore it is delegated. Power is delegated for several reasons. It saves time for parliament as the volume of legislation they have to deal with is increasing, therefore meaning that there would be insufficient time to look at everything in great detail and perhaps hold debates.
The expertise and knowledge of MPs varies in different areas. MPs would not have sufficient knowledge for a certain area so therefore with delegated legislation certain people who are specialists in certain areas are selected to be in charge of that particular aspect, i. e. the minister for transport has power and will be able to deal with necessary road traffic regulations. Also for speed and flexibility, as it allows rules to be made more quickly than they would be if done so in parliament.
Due to the fact that parliament doesn’t sit all the time. In emergencies laws can be passed and active straight away, also revoked just as quick, making it more flexible. As delegated legislation is necessary in our society today and in many instances made by non-elected bodies. This means that so many people then have the power to make delegated legislation that controls preventing abuse of power are enforced. However, sometimes before a law is passed on a particularly delicate matter such as planning laws that may affect the environment, a public enquiry will be held beforehand.
Control methods are also enforced from parliament. Affirmative resolutions prevent the statutory instrument from becoming law unless it is specifically approved by parliament. Negative resolution means that the relevant statutory instrument will become law unless it is rejected by parliament within a period of forty days. Also a scrutiny committee review all the statutory instruments and where necessary the will draw the attention of both houses of parliament to points that they believe need further consideration. The review is a technical one and therefore isn’t based on policy.
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The controls enforced by the courts are Ultra vires, which means ‘beyond the powers’ that parliament originally granted in the ‘enabling act’. It is an important concept in law as anything done beyond its powers, and therefore could be challenged as not being legally valid. There are two types of ultra vires, substantative ultra vires is when the minister has exceeded the powers given in the enabling act, for example if he / she has made regulations regarding a issue other than the ones allowed to in the enabling act. The second type is procedural ultra vires, where there has been a failure to follow a ritual requirement specified in the enabling act. Sometimes the subordinate bodies in charge must carry out a consultation with a consultative body beforehand. Statutory instruments may also be declared void if they conflict with the European Union legislation.
Delegated legislation is obviously an important aspect of our law and day-to-day running of the country. It works efficiently and effectively. Without it law wouldn’t be so precise and detailed, it would also mean that there wouldn’t be half the amount of laws there is today because there wouldn’t be enough time for parliament. Without it we wouldn’t have byelaws, meaning that rules wouldn’t suit everyone. At least with a byelaw it suits the particular area / county it was made for. Furthermore the law probably wouldn’t be as specific and broad, meaning not every aspect would be covered as not everyone within parliament would have the relevant specialised interest and knowledge needed for specific laws and regulations to be made.
This is important for us to have nowadays as this country as a whole has changed dramatically since world war one. Since then the welfare state, technology, transport, general occupations, medical research, consummation of products has changed dramatically. Therefore due to these changes new laws have had to be made and furthermore, methods of control have been enforced to illuminate the abusing of powers with regards to delegated legislation.
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