Why is it necessary to have controls over delegated legislation? Are the present controls satisfactory?
In this essay I am going to describe what delegated legislation is, clarify why it needs to be controlled, discuss the controls that exist and the problems that exist with the controls and finally state whether I believe the controls are adequate and if not reformations that could take place to improve the current system.
What is delegated legislation?
Delegated legislation means permitting bodies beneath parliament to pass their own legislation. The three main forms of delegated legislation are statutory instruments, by-laws and orders in Council.
Statutory instruments are created by government departments for areas under their responsibility. The Parent Act gives the departmentıs permission as well as guidance about how the new piece of legislation is to be written and processed. Under Statutory Instruments the Minister for Transport will be able to deal with necessary road traffic regulations and the Health and Safety Executive may use a Statutory Instrument to change safety law; statutory instruments give departmentıs immense freedom to change the law and as a result 3,000 statutory instruments are brought into force each year.
By-laws are created by local authorities to cover matters in their own area, which must be approved by central government. For example Nottingham City Council along with many other local authorities in the country is enforcing a car ban in the City Centre area. Public bodies such as the British Airport Authority and the railways can enforce rules about public behaviour on their premises. Another example of a bylaw is the smoking ban on the London Underground System.
Orders in council are laws passed in an emergency by the government, when parliament is unable to sit. Under the Emergency Powers Act 1920 orders in Council are approved by the Privy Council and signed by the Queen. An example of when Orders in Council could have been used is during the bombing of the World Trade Centre in September 2001, if the speculations that the Houses of Parliament was next to be attacked came true, then orders in council would have been the last resort.
The need for delegated legislation
Delegated legislation is necessary for a number of reasons: parliament does not have time to contemplate and debate every small detail of complex regulations, as it only has a limited amount of time to pass legislation, delegating legislation will allow however thoroughly debated regulations to pass through as well as saving parliamentary time.
Delegating legislation allows law to be made more quickly then parliament, which is vital for times of emergency. Parliament takes longer as it does not sit all the time and its procedures is generally quite slow and complex due to the several stages each bill has to pass through. Delegated legislation can also be amended or revoked relatively easily, so that the law can be kept up to date and so that the law can meet future needs that arise such as areas concerning welfare benefits, illustrating a great deal of flexibility in the system. Otherwise statutes can only be amended or revoked by another complicated and time-consuming statute.
MPs do not usually have the technical knowledge/expertise required in for example drawing up laws on controlling technology, ensuring environmental safety, and dealing with different industrial problems or operating complex taxation schemes whereas delegated legislation can use experts who are familiar with the relevant areas. Jacqueline Martin has suggested instead for parliament to debate the main principles thoroughly, but leave the detail to be filled in by those who have expert knowledge of itı.
Another argument for the need of delegated legislation is that parliament may not always be the best institution to recognise and deal with the needs of local people. As a result local people elect councillors from certain districts and it is their responsibility to pass legislation in the form of by-laws to satisfy local needs.
Why is it necessary to have controls over delegated legislation?
There are many important reasons why it is necessary to have controls over delegated legislation. Currently delegated legislation is made by non-elected bodies away from democratically elected politicians (parliament) , as a result many people have the power to pass delegated legislation, which provides a necessity for control, as without controls bodies would pass outrageous unreasonable legislation which was attempted in the past; in the Strictland V Hayes Borough Council (1986) where a bylaw prohibiting the singing or reciting of any obscene language generally, was held to be unreasonable and as a result the passing of this delegated legislation was rejected.
Below I describe cases where controls over delegated legislation have been essential in order to avoid authorities abusing there powers, the particular cases are: R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000) and Commissioners of Custom and Excise v Cure and Deely Ltd (1962).
Another issue which occurs making controls over delegated legislation vital is sub legislation, which is where law making is handed down another level to people other than those who were given the original power to do so, to implement important policies. Creating criticism that our law is made by civil servants (who may know hardly anything about the law) and just rubber stampedı by the Minister of that apartment, this requires law passed by these civil servants to be checked by the scrutiny committee of parliament or the courts.
Finally delegated legislation can share the same issues as Acts of Parliament such as obscure wording that can lead to difficulty in understanding the law, which again makes controls necessary as parliament or the courts can stop unclear legislation, which will affect the lives of hundreds of people from passing.
The controls that exist over delegated legislation and criticisms
Control over delegated legislation is through parliament (via affirmative/ negative resolution procedures as well as through the scrutiny committee) controls over delegated legislation also exist through the courts (via judicial review and the doctrine of ultra vires- explained next).
Statutory instruments become law in two ways through the negative resolution procedure, where after the statutory instrument is written it is shown to parliament and if within 40 days there are no objections it immediately becomes law if there is objections however then the statutory instrument is debated in the House of Commons, House of Lords or in a Standing Committee.
Or through an affirmative resolution procedure where a statutory instrument may not become law unless specifically approved by parliament; parliament will put an instruction under the Parent Act, informing that the issue is required to be debated and voted upon before it becomes law. Under the affirmative resolution procedure parliament may be required to vote for its approval of the delegated legislation, which will provide a fair system as each Member of Parliament will represent the public or a specific body and will provide different views on different laws, it would also ensure that full parliamentary attention has been drawn to important legislation. MPıs also have the advantage of asking ministers questions about delegated legislation at question time or raise them in debates. A major disadvantage of this procedure however is that parliament cannot amend the statutory instrument; it can only be approved, annulled or withdrawn. Another disadvantage of this procedure is that it can be fairly time consuming of parliamentary time due to carrying out votes and opposition parties having the opportunities to raise any objections.
The scrutiny Committee (also known as the Joint Select Committee) is responsible for reviewing statutory instruments in close detailı and drawing the attention of parliament to any delegated legislation which requires special further consideration before the committee stage of the bill. Possible problems that the scrutiny committee could go through that may force them to inform parliament could be (highlighted by Jimmy OıRiordan, AS Law for OCR): that a statutory instrument is going beyond its powers (known as ultra vires), a statutory instrument is imposing a tax which it is not allowed to do- only an elected body has the right, a statutory instrument s producing legislation which is unclear or a statutory instrument is producing retrospective legislation (backdating an offence), which was not provided for by the enabling Act.
A major criticism of the Scrutiny Committee is that the committee may not consider the merits of any piece of delegated legislation (only whether the delegated legislation has been correctly used) and has no power to alter any statutory instruments. As the scrutiny committeeıs report has no binding effect it can sometimes be seen as a waste of parliamentary time as well as the committeeıs time. The Hansard Society in their 1992 report found that some of the critical findings of the committee were ignored by ministers, however despite this Elliott and Quinn highlight [the scrutiny committee] makes an important contribution, and has been able to secure changes to a number of important pieces of legislation.ı
Parliamentary sovereignty means that parliament can revoke a piece of delegated legislation at any time, or pass legislation on the same subject as the delegated legislation. Parliamentary sovereignty is a major advantage as if for example unclear legislation was being passed or legislation imposing a tax when not supposed to, the revocation of that piece of legislation would be vital
Judicial review is where judges in the Queenıs Bench Division of the High Court are asked to review the descisions of inferior courts and tribunal, and also of public bodies and officials. It allows the courts to supervise the workings of a very wide range of descision making processes, making sure the process remains fair and provides access to justice, as well as making sure that powers are not abused.
Procedural ultra vires occurs when procedures under the enabling act have failed to be followed and refers mainly to the situation where a public authority has over stepped its powers. An example of ultra vires occurred in R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000) a High Court judge ruled that a statutory instrument setting conditions for appraisal and access to higher of pay for teachers was beyond the powers given under the Education Act 1996 as a result the statutory instrument was declared void. This case demonstrated a clear example of where delegated legislation can lead to abuse of powers and why it is necessary to have controls over delegated legislation.
The problem with enabling Acts is that it provides Ministers with high discretionary powers as a result Elliott and Quinn demonstrate a phrase such as the minister may make such regulations as he sees fit for the purpose of bringing the Act into operationı to be quite common; this means it is rare for anything to lead to ultra vires leaving judicial review effectively frustratedı (Elliott and Quinn).
Under the principle of substantive ultra vires, the courts are able to intervene to prevent or remedy an abuse of power by public authorities. This occurred in the Commissioners of Custom and Excise V Cure and Deely Ltd (1962), where the power of the commissioners to make delegated legislation under the Finance Act 1940 was challenged. Under this Act the commissioners determined the amount of tax due where a tax return was submitted late however the High Court invalidated this and argued that the commissioners had given themselves powers far beyond what parliament had empowered, there job was to only collect the amount of tax due. This is another case whether it has been clearly demonstrated without controls many authorities will abuse the powers ultra vires and again demonstrates why it is necessary to have control over delegated legislation. In this demonstration control by the courts has proved to be highly effective.
Ministers have the benefit of further consultation before regulations are drawn up. Those who make delegated legislation often consult experts in those relevant fields as well as those bodies who are likely to be affected by it. An example of a consultation process could be given under road traffic regulations, where ministers are likely to seek the advice of police, motoring organisations, vehicle manufacturers and local authorities before making the rules.
All delegated legislation is published and therefore provides an opportunity for public scrutiny. However Elliot et al argue publication has only limited benefitsı. The large volume of delegated legislation makes it difficult for the public to understand what the current law is; also the majority of delegated legislation is made in private in contrast to the public debate of parliamentı (Jacqueline Martin). People are also unaware of their rights; on what grounds law can be challenged and how to go about doing so making it difficult for public scrutiny. On the other hand many people also lack financial resources to go to court, which means legislation is let unchallenged.
After having reviewing the controls that exist over delegated legislation I have discovered many flaws in the system such as the Scrutiny Committee not being able to consider the merits of any piece of delegated legislation (only whether the delegated legislation has been correctly used) and the Scrutiny Committee having no power to alter any statutory instruments and parliament only being able to approve, withdrawal or annul legislation. As a result the different controls are not satisfactory; however there are reformations that could take place to improve the current delegated legislative process. Parliament should be able to amend a statutory instrument rather then just withdrawing it, approving it or simply annulling it. Another reformation that could take place in order to improve the current system of delegated legislation is for parliament to vitally consider the critical findings of the Scrutiny Committee, as it is appalling to know that months and years of hard work from the Scrutiny Committee on delegated legislation is simply ignored by parliament.