Delegated legislation
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Delegated legislation (sometimes referred to as secondary legislation or subordinate legislation) is law made by ministers under powers given to them by parliamentary acts (primary legislation) in order to implement and administer the requirements of the acts. It has equal effect in the judiciary although ministers can be challenged in the courts on the grounds that specific pieces of delegated legislation are not properly based on powers given by acts.
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United Kingdom
In the United Kingdom, delegated legislation, typically, is made through the force of statutory instruments in the form of ministerial regulations, orders in council, and codes of practice. Secondary Legislation in Wales, in devolved areas, is passed by the National Assembly for Wales. The amount and scope of delegated legislation has mainly grown as a result of the increasing pressure on parliamentary time. In the context of Wales since 1999, Parliament has legislated knowing that the nature of the legislation could widen, (or narrow) the powers of the National Assembly.
Controversy
- Advocates suggest that it represents an efficient way of relieving Parliament, that much of its subject-matter is uncontroversial, and that Parliament voluntarily gave up power in such irksome business.
- Critics object to the growing legislative autonomy of the executive from Parliament, and point out that deeply controversial matters, such as immigration rules, have been treated as delegated legislation.
Increasing political concern was reflected in the House of Lords' successful defeat in February 2000 of an affirmative instrument by which government sought to deny candidates a free mailshot in the 2000 London Mayor election. Devolution to Northern Ireland (1998) and Scotland (1999) means that the assembly and parliament respectively make their own arrangements for primary and delegated legislation. The creation of the National Assembly for Wales (1999) established an elected institution that is unique in being solely responsible for the creation, scrutiny, and implementation of delegated legislation from primary legislation still drawn up by the UK Parliament.
Examples of where Delegated Legislation may apply
Statutory Instrument are regulations made by government Minister and department. The example will be the Road Vehicles Regulations 2001 and Prison Rules 1999.
Bye-laws are made by local authorities to cover matters within their own area. Meanwhile, Bye-law also can be made by certain public corporations and certain companies for matters within their jurisdiction which involve the public. In Boddington v. British Transport Police [1998] British Rail made a byelaw under Transport Act 1962, prohibiting smoking where "no smoking" notices were displayed.
Orders-in-Council are laws made by and with the advice of Her Majesty's Privy Council and are used, for transferring responsibilities between Government Departments, and under the Emergency Power Act 1920. An example is the Government controlling fuel supplies during the fuel crisis in 2000 and Consumer Protection Act 1987 Order 2000 which extended the scope of consumer protection law to agricultural products.
Why is there a need for Delegated Legislation?
Delegated legislation plays an important part in the smooth running of Parliament and Law as a whole. Parliament cannot cope with the demand for new laws, and so delegating the responsibility to another body takes the pressure off Parliament and allows the act to be passed faster, as it does not have to travel through the system as shown earlier.
This type of legislation can be more subject specific, using technical knowledge from qualified individuals, creating a more thorough, detailed and smoother running piece of legislation. Delegated legislation can also be put into place if problems arise with existing legislation, as it is not feasible to take into account every aspect and every future problem when creating the legislation in the first place.
For example, if a new piece of legislation needs to be introduced regarding the running of hospitals, there may only be few members of parliament in the medical profession, and so there would not be the necessary background knowledge in Parliament. In this case, Parliament may delegate the responsibility of creating the legislation to the British Medical Association.
Examples of how Delegated Legislation is controlled are as follows: Consultation – those in the profession, as shown above, are consulted with regards to the subject (e.g. BMA with respect to legislation involving hospitals).
An example of delegated legislation and its effects can be seen in Wolverhampton with the recent introduction of banning drinking in public places (e.g. West Park, Dudley Street). This is to help cut down on drink related crimes.
Advantages and Disadvantages
It is now generally accepted that delegated legislation not only has shortcomings but that it also has some advantages.
Firstly, It saves Parliamentary time. To take just one example, the Local Government Pension Scheme Regulations 1995 run to 185 very detailed but uncontroversial pages. There would be nothing to be gained from debating these in Parliament: the time taken for 650 MPs and 300 or so peers even to read the draft regulations would be better spent on other things.
It allows Parliament to concentrate more on broad issues of policy rather than masses of detail. The Road Traffic Act 1972 included a general requirement for motor-cyclists to wear protective helmets, but left the Secretary of State to draw up detailed regulations as to the type of helmet required. The Motor Cycles (Protective Helmets) Regulations 1980 contain further detail about the requirements.
It allows technical matters to be determined by those competent to do so, and can make use of expert knowledge not available within the Civil Service. The Air Navigation Order 1995 contains 140 pages of highly technical rules (including tables, maps and so on) governing the flying of civil aircraft around the United Kingdom: it is doubtful whether any Member of Parliament (including the Minister) had the technical expertise even to comment on these rules, let alone draft them.
Delegated legislation is more flexible than an Act of Parliament. The County Court Fees Order 1999 sets out the fees payable at various stages of civil proceedings, but the County Court Fees (Amendment) Order 2002 amends this Order to take account of changes in certain enforcement procedures. Similarly, the Civil Courts (Amendment) Order 1997 was made by the Lord Chancellor under s.2(1) of the County Courts Act 1984 to close the now-redundant County Court at Ammanford.
It allows rapid action to be taken in times of emergency. The Food Protection (Emergency Provisions) Order 1986 was made and laid before Parliament and came into effect less than two hours later, prohibiting the movement or slaughter for food of sheep in certain areas thought to have been affected by radioactive fallout from the incident at the Chernobyl power station.
It has allowed for the National Assembly for Wales to make specific policy decisions for Wales. For example although the primary legislation concerning the National Health Service is by and large common to England and Wales, the structure of the service and the cost of prescriptions charges vary between the two countries.
United States
The U.S. and its constituent state governments reserve the power of making "legislation" exclusively to the elected Congress and state legislatures, respectively. However, these legislative bodies often delegate the power to make binding regulations to executive branch agencies, commissions, and other bodies. These regulations effectively have the same legal status as delegated legislation.
The Supreme Court has ruled that the Constitution permits Congress to delegate legislative power to other officials only if it establishes specific criteria for those officials to apply in adopting regulations. Since 1937, however, the court has approved very broad criteria (such as requiring that rules be "consistent with the public interest") that give the rulemaking officials virtually unlimited discretion. See Article I of the United States Constitution.