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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