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 a 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:
- Orders in Council – made by Crown and Privy Council.
- Statutory instruments – made by Government Ministers.
- Bylaws – made by local authorities and public corporations.
Advantages of Delegated Legislation
Parliamentary Time Saving
Parliamentary time is saved on relatively trivial matters. Given the enormous volume of legislation that must be considered, Parliament can better use its time by delegating detailed regulations to other bodies. This ensures that significant policy issues and debates are prioritized in Parliament.
Local Knowledge and Expertise
Local knowledge is usually desirable in deciding what local bylaws should be passed. This task, therefore, is given to local authorities who are more familiar with their community’s needs and can create more appropriate and effective regulations. This principle aligns with the concept of subsidiarity in governance, where decisions are made at the most local level possible.
Speed and Flexibility
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 promptly. The ability to respond swiftly to situations such as public health crises or national security threats is a critical benefit of delegated legislation.
Technical Expertise
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 often concerns specialist technical or local knowledge. It is advantageous for such specialist provisions to be dealt with by those who have the relevant expertise rather than by Members of Parliament, who generally would not have the required specialist or local knowledge.
Adaptability
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. This adaptability allows for regulations to be updated or altered to reflect new information, technologies, or changing societal needs without undergoing the lengthy legislative process.
Disadvantages of Delegated Legislation
Democratic Deficit
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. This can lead to concerns about the accountability and transparency of the legislative process.
Accountability Issues
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 then to a department and possibly again to a group of experts. This can create a situation where it is challenging to determine who is ultimately responsible for a particular regulation, making it difficult to hold any one individual or body accountable.
Inadequate 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. This can result in insufficient scrutiny of the regulations being passed, potentially leading to poorly drafted or inappropriate legislation.
Volume and Complexity
The large volume of delegated legislation, with about 3000 statutory instruments produced each year, makes it very difficult for Members of Parliament, let alone the general public, to keep up to date with the present law. This issue is exacerbated by the fact that delegated legislation is often made in private, without the same level of public debate and transparency as primary legislation.
Potential for Abuse
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. The potential for abuse arises when there is insufficient oversight and control over the delegated bodies, which could lead to arbitrary or unjust regulations being implemented without proper checks and balances.
Academic Perspectives
Several academic theories provide a framework for understanding the implications of delegated legislation. Administrative law theory emphasizes the need for efficient governance and the practicalities of delegating legislative functions to administrative bodies. This perspective supports the idea that experts within specific fields are better equipped to handle the complexities and nuances of regulatory details.
On the other hand, democratic theory focuses on the principles of representation and accountability. From this viewpoint, the delegation of legislative power to unelected officials can be seen as undermining democratic legitimacy. Scholars like A.V. Dicey have argued for the importance of parliamentary sovereignty and the risks associated with excessive delegation of legislative authority.
Principal-agent theory can also be applied to understand the relationship between Parliament (the principal) and the delegated authorities (the agents). This theory highlights the challenges of ensuring that the agents act in the best interests of the principal and the potential for agency problems, such as lack of accountability and transparency.
Conclusion
Delegated legislation plays a crucial role in the legislative framework of the United Kingdom, offering numerous advantages such as efficiency, local expertise, speed, and flexibility. However, it also presents significant challenges, particularly concerning democratic legitimacy, accountability, scrutiny, volume, and public engagement.
While the practical benefits of delegated legislation are clear, addressing its disadvantages is essential to ensure that the process remains transparent, accountable, and democratically legitimate. By balancing the need for efficient governance with the principles of democratic accountability, the use of delegated legislation can be better aligned with the values of a democratic society. Ultimately, the ongoing evaluation and reform of delegated legislation practices will be necessary to maintain public trust and ensure the effectiveness of the legislative process.
Bibliography
- Jacqueline, M (5th edition) The English Legal System
- Marsh & Soulsby (Third Edition) Outlines of English Law
- http:www.Sixformlaw.com