Delegated Legislation in the English Legal System - Essay Example

Effectiveness of parliamentary and judicial controls over delegated legislation in the English legal system Delegated legislation, which is also known as secondary legislation, is a legislation prepared by a body or a person other than Parliament. The UK parliament, via an Act of Parliament, may permit another body or person to make legislation. Acts of Parliament establishes the framework of a specific law and only tends to include an outline regarding the purpose of that Act. By giving authority to delegate legislation to other bodies or persons, parliament enables them to offer more detail to the Act of Parliament. Therefore, parliament through primary legislation (Act of Parliament), do permit others to create law and rules via delegated legislation. Legislation made by delegated legislation should be created in harmony with the purposes stipulated in the Act. The role of delegated legislation is to enables the UK Government to amend laws without waiting for new Acts of Parliament to be passed in the house. It`s worth noting that delegated legislation can also be used to create technical changes to a law, for instance altering sanctions in a given statute. Local Authority also has power confer to them under some statutes to enables them to create delegated legislation and also to make law that suits their area (Jayakumar, 2005, pg. 89). The delegated legislation offers a very important function in the making of laws in UK legal system as there exists more delegated legislation enacted every year than there exist Acts of Parliament. Moreover, delegated legislation has similar legal standing as the Act of Parliament which it was made. These are clear justifications that the question of effectiveness of judicial and parliamentary control over the delegated legislation is a weighty issue to examine in the UK legal system. It would be inappropriate to assume that parliamentary control over delegated legislation is actually a burning issue in a country where most voters would probably be acquainted with what delegated legislation is about. It`s because of this that it is hard to come across members of any of UK parliaments ready to take much interest regarding the matter. Nonetheless it is of great significance, since unregulated delegated legislation provides a fertile field for UK government despotism as well as bossy interference by the bureaucrats. Therefore, it not wrong for one to say parliamentary control over delegated legislation is somehow ineffective. Delegated laws at times create much more effects on the lives of common citizens compared to most acts of parliament. In the UK, most delegated legislation acquire the form of ‘statutory instruments’ and there exists a drafting manual. Besides, annual volumes of the statutory instruments are normally published. The parent Act might grant either house power to outlaw a statutory instrument. However, there is lack of enthusiasm in the Lords to push matters to a division. This is perhaps because a proposal to remove Lords’ power of veto was made when the Lords had defeated the United Nations Sanctions (Southern Rhodesia) Order 1968. The UK Lordships have never since attempted to beat a statutory instrument. There exists no formal process in the House of Commons to scrutinize bills so as to see that some delegated power is essential and properly defined and controlled. Nonetheless, the House of Lords made a committee to handle these matters in 1994. Sub-delegation and quasi-legislation are virtually uncontrolled, and the control of Henry VIII clauses is unreliable. There are around fifteen acts a year that delegate power to the UK government to amend the acts of parliament. It`s thus common for the UK government to receive permission to exercise the power with no an affirmative resolution of parliament. A new approach of Henry VIII clause was launched in 1994. Deregulation and Contracting Out Act granted ministers the power to create orders to repeal or even amend any act approved up to the end of 1993/1994 session. The objective is to eliminate a statutory burden on business, trade, profession or a person so long as the minister was satisfied it would not eradicate any necessary protection. The arrangements for control of the orders are a bit more thorough compared to those for statutory instruments. Concerned minister should consult interested parties regarding a draft order after which they present before Parliament a proposal for this order together with a comprehensive explanatory memorandum. Every house has created a committee to consider proposed delegated regulation. The committees need to support the draft, propose amendments as well as recommend rejection. UK`s House of Commons committee did recommend the rejection of the three proposed delegated regulation between 1994 and 1999 (Le Sueur, Sunkin & Murkens, 2013, pg. 96). If the minister wishes to carry on with the order, he is required to consider the reports given by the deregulation committees. The draft order is then voted upon by both UK houses. It is an incredibly tight process, with time limits for various stages. One may be perplexed to read that via delegated legislation, a huge amount of law is created each year outside of democratically elected parliamentary method and thus this law is created by non-elected individuals. Nevertheless, there exist certain safeguard measures to guarantee that delegated legislation is regulated by a means of both judicial and parliamentary control. Parliamentary control is effective in that it enables parent Act, which is passed by parliament, to set out parameters or a framework within which the delegated legislation is created. Moreover, there exists a scrutiny committee in every house of parliament whose responsibility is to weigh delegated power proposed by any Bill. Nevertheless, these committees have limited power. In parliamentary controls, the delegated legislation created by Statutory Instrument can either require to be approved by votes of every House of Parliament prior to it being made (affirmative resolution procedure), or it be subject to veto by either of the House within some period of time after it`s created (negative resolution procedure). There exists a constitutional convention which the House of Lords never vote against the delegated legislation; instead it passes a motion which sets out their concerns whereas still allowing legislation to pass. The controls in place concerning the delegated legislation guarantee that those who create law under it do it in an appropriate way. Parliament exercises control over the delegated legislation since when an Act of Parliament is made, Parliament specify in that Act of Parliament the parameters concerning the delegated legislation (Sheshadri, 1974, pg. 138). Moreover, the scrutiny committees that considers delegated legislation in a Bill as it goes through the UK Houses of Parliament reveals some sort of effectiveness in the parliamentary control. Delegated legislation also faces a judicial control process through the Court. A section of delegated legislation might be deemed by the UK Court to be an ultra vires. This implies that the body which created the delegated legislation over stepped their mandate regarding the powers conferred to them by the statute (Ward, Wragg & Walker, 2011, pg. 109). For instance, a body would be deemed ultra vires if the delegated legislation created by this body goes beyond whatever Parliament intended or when the procedural rules required to be followed in regard to the delegated legislation where not followed. Every Court action that is put forward challenging the delegated legislation is done via the means of a Judicial Review. If the Court finds that a section of delegated legislation is ultra vires, then the court ought to be saying that a portion of delegated legislation is made beyond powers granted by the parliament in the enabling Act. Whenever the court does this, the delegated legislation in question becomes void and ineffective. The mere fact that delegated legislation in UK legal system is subjected to the courts` control and that the court judges has power to declare a portion of delegated legislation “ultra vires” is a sign of effectiveness in the control process. List of references JAYAKUMAR, N. K. (2005). Administrative law. New Delhi, Prentice-Hall of India. LE SUEUR, A. P., SUNKIN, M., & MURKENS, J. E. (2013). Public law: text, cases, and materials. SHESHADRI, P. (1974). Parliamentary control over delegated legislation (with special reference to U.K and India). Hyderabad, India, Printed by the Director, Dept. of Publications & Press, Osmania University]. WARD, R., WRAGG, A., & WALKER, R. J. (2011). Walker & Walkers English legal system. Oxford, Oxford University Press. Read More