Delegated Legislation

Delegated legislation in its various forms is a necessary source of law in a progressive society. Parliament simply cannot keep up with the need for law reform demanded by society. The government formed within Parliament has to fulfill the promised reforms (among other agenda) and there is definite pressure to see that these reforms are passed within the particular session. The lack of specialized knowledge among MPs’ make DL a necessary avenue to ensure reasonable and effective content of the law. It would be unreasonable to expect MPs’ to have specialised knowledge and understanding on a wide variety of areas. Delegated power is also necessary to enable a particular minister or body of people to issue laws to deal with emergencies and unforseen contingencies. Passing an Act of Parliament is a particularly lengthy process and therefore unsuitable to deal with emergencies.

There are numerous concerns over the contribution of delegated/ secondary/subordinate legislation as a source of law in the UK. The bulk of reform via DL is alarming eg 100 Acts to 3000 pieces of DL and the concerns are justified. Delegated legislation(DL) is a generic term for legislation which is passed by a subordinate body to whom Parliament has delegated law making powers. At a higher level, DL passed by the Privy Council or cabinet ministers or ministers are called Orders in Council , Statutory Instruments and Ministerial Regulations whereas DL issued by Local Councils are called ‘by laws’ .

Undeniably, these laws are not passed by Members of Parliament as the peoples’ legislative representatives but by bodies controlled by the executive due to their unique position as a power within Parliament and having a degree of control over Parliament. This threat is compounded by the practice of sub delegation within the ministry. The first part of the statement above is therefore valid as the idea of democracy is based on a nation governed by laws passed by popularly elected representatives rather than the executive. The making of DL by executive ministers/bodies is also contrary to the ideals of the Doctrine of Separation of Powers which is practiced in most democratic nations.

The latter part of the statement is therefore arguably justified in that the practice of L is a very high price to pay as a source of law today. Despite this concern it is undeniable that DL is a necessary practice to ensure smooth governance of a nation. These concerns have however been addressed by the various forms of parliamentary, judicial and political controls operating to ensure that the threat is contained or reduced.

The Parent Act itself provides boundaries to the exercise of power by the subordinate body and also provides guidelines eg the requirement to consult, and method of approving the delegated laws. The Joint Select Committee on Statutory Instruments has the function of scrutiny and review of such laws to ensure substantive and procedural validity. The House of Lords also acts as a review body of all delegated legislation.

The courts have an important role to ensure substantive and procedural validity of the DL through the process of Judicial Review. DL issued by the subordinate body in excess of its authority or for an improper purpose or without following the mandatory guidelines in the Parent Act can be challenged and quashed on the grounds of Ultra Vires(R v Commissioner for Income Tax exp Cure and Deely; Aylesbury Mushroom Case; R v Sec of St exp Fire Brigade Union).

In a democratic society, the ultimate control lies with the people(the political sovereign) by passing a vote of no confidence against the government of the day through their representatives in Parliament if the government has issued unreasonable DL. A minister issuing unreasonable SI may also be forced to resign according to the convention of individual ministerial responsibility.
Tin conclusion, the threats to democracy are sufficiently addressed through the avenues for review and controls over the creation of DL provided these avenues are used effectively.