Overview

Through an enabling act or parent act, Parliament delegates powers to other persons or bodies. Delegated legislation is also known as subordinate or secondary legislation.

There are three types of delegated legislation. Orders in Council are drafted by the Government and formally signed by the Privy Council and Monarch. Orders in Council have a number of uses including to transfer responsibilities between Government departments, dissolving Parliament, compliance with European directives and in times of national emergency, when Parliament is not sitting. Statutory Instruments are made by Government Ministers within the area of their responsibility and are often used to update laws. By laws are made by local authorities and public bodies and confirmed by the appropriate Minister. By laws apply only to a local authority area or the public body. Powers have also been delegated to the Court Rules Committee to make procedural rules for the courts, for example the Civil Procedure Rules 1998.

Delegated legislation becomes invalid if it goes beyond the scope of the authority conferred by the parent Act. Such legislation is ultra vires (outside their powers) and inoperative.

Advantages

• Time Saving

  Delegated legislation save Parliamentary time, it would be impossible for Parliament to pass all the detailed local legislation covered by statutory instruments each session. The detail of legislation can be left to appropriate Ministers and Parliament can concentrate on the general principles in the enabling Act. Delegated legislation can also be passed quickly in order to deal with situations when they arise and emergencies.

  The Movement Restrictions (Foot-and-Mouth Disease) (No.2) Regulations 2007 were statutory instruments passed to help deal with the foot and mouth crisis.

• Expertise

  Delegated legislation can be prepared by those with specialist knowledge, sometimes which Parliament does not possess. Ministers and Civil Servants have considerable knowledge within their particular area of responsibility.

  The Cableway Installation Regulations 2004 were made in order to comply with an EU directive by the Ministry of Transport. It required technical understanding of cable cars and ski lifts.

• Flexibility

  Delegated legislation is more flexible than an act of Parliament as it is easier to amend. It also provides flexibility to legislate when necessary and on an ad hoc basis.

Disadvantages

• Democratic Accountability

  Delegated legislation is not directly debated in Parliament, apart from the statutory instruments which are subject to affirmative resolution procedure. Orders in Council are drafted by the Government but approved by the unelected Monarch and Privy Council. The concept of delegated legislation can be seen as undermining the doctrine of Parliamentary Sovereignty.

• Sub Delegation

  The body or person who has been given the power to make the law may pass this on to another. Statutory Instruments are often drafted by civil servants and simply rubber stamped by Minsters.

• Scrutiny

  Delegated legislation is only subject to limited Parliamentary controls. The Delegated Powers Scrutiny Committee examines all Bills with delegating powers before they begin their passage through the House of Lords. The Merits of Statutory Instruments Committee reviews legislation that has been made from delegated powers. The Joint Committee on Statutory Instruments examines whether statutory instruments comply with the provisions in the enabling act. Members of Parliament may lack the ability to monitor the legislation because it is often highly technical in nature.

  Delegated legislation rarely attracts much publicity as it is not debated in Parliament and therefore another layer of scrutiny and accountability is removed.

• Volume

  There were 3133 statutory instruments introduced in 2011 compared to just 30 Acts of Parliament.

  It is difficult for the public and interested parties to raise objections or input into the legislation. Also it can be hard to keep up with changes and establish the current laws.