Constitution of the United Kingdom and the Place of Delegated Legislation in It - Essay Example

Delegated Legislation: a Practical Necessity Delegated Legislation: a Practical Necessity Table of Contents I. Introduction II. The UK Constitution ●Separation of powers ●Parliamentary sovereignty III. Delegated Legislation ●Definition ●Rationale ●Types ●Controls ●When invalid ●Advantages IV. Problems with delegated legislation ●Montesquieus theory ●Disadvantages V. Delegated legislation: a practical necessity VII. Conclusion I. Introduction The process of lawmaking has brought benefits for the purposes of man. However, this process has bounds and limits due their possible negative effects as in contravening some important principles of constitution. Power must not be concentrated among a few, for example, and there is a need for checks and balances. The same is true with delegated legislation. Delegated legislation as a concept can only be clearly assessed after looking into the constitution of which it is a part. Whether it is a practical necessity and to what extent it would be considered fair when it runs counter some important constitutional principles, requires a deeper examination of its nature. This paper first gives a quick rundown on the constitution of the United Kingdom and the place of delegated legislation in it vis-à-vis the concepts of separation of powers and parliamentary sovereignty. Only then will it start exploring delegated legislation beginning with its definition, its rationale, its types and controls, when it is considered invalid, and finally its advantages. Next would be the problems associated with delegated legislation, particularly its relevance to Montesquieu’s theory; and its disadvantages as legislation. Another section on its being a practical necessity would follow, and then a conclusion. Towards the end, the paper will make a stand and show that while delegated legislation may be a practical necessity that may undermine important constitutional principles, the extent will only be when proper checks and balances are provided. II. The UK Constitution The constitution of the United Kingdom is an amalgam of statute law, precedent, and tradition dating as far back to the time of King Henry I in the 1100s.1 Uncodified, UK’s constitution is said to have been historically guided by certain conventions like a system of checks and balances which protect citizens against the abuse of executive power, respect for the liberties of the individual, and trust in the political process.2 Over the years, constitutional conventions have been considered more important than written constitutional provisions in interpreting one’s task with the uncodified constitution 3 The informal nature of the UK constitution may be said to inherently welcome the lack of constitutionalism concept. The executive is drawn from the legislature, Parliament, since the UK has a Parliamentary system of government.4 Because the government is “fused" with Parliament, governments have no formal control on their legislative power. In 1976, in fact, the phrase elective dictatorship was introduced, placing attention to the large potential power of government given by the constitution.5 Since 1998, however, the constitutional structure of the United Kingdom has undergone dramatic changes.6 In sum, the UK constitution has no formal separation of powers which is being claimed as important for the doctrine of “limited government” 7 and has no formal provisions for checks and balances that Montesquieu’s theory claims is inherent in separation of powers. 8 Separation of powers. The principle of separation of powers derived from Montesquieu’s theory is based on the need of power holders to be balanced off against each other. Such balance of forces precludes power from being focused in the hands of those who would be tempted to abuse it.9 The benefit of this principle is said to be the stability it engenders.10 There are differing views on Montesquieu’s theory when applied to the case of the United Kingdom’s constitution. Some claim Montesquieu has erred in his assessment in that with the UK’s constitution there has been an “effective” separation of powers. Secondly, there have been checks and balances but only that they were informal. Notwithstanding these arguments, attempts at reforms indicate that formal separation of powers as a constitutional principle is still to be reckoned with. This principle appears to run counter against parliamentary sovereignty. Parliamentary Sovereignty. The single most important principle of the UK constitution, according to Nicola McEwen,11 is that of parliamentary sovereignty. Under this principle, Parliament can make or unmake any law on any subject whatsoever. Under this principle too, no one Parliament is bound by the decisions of its predecessors, nor can it bind its successors. There is no higher body, such as a supreme court, that constrains the legal authority of Parliament. However, parliamentary sovereignty is now directly challenged by the UKs membership of the European Union. III. Delegated Legislation In the United Kingdom, primary legislation is of the national kind, either for the whole of the UK (Acts of Parliament) or for only one of the constituent countries in the United Kingdom - England, Northern Ireland, Scotland or Wales.12 Definition. These times, much legislation is secondary or subordinate legislation. These are measures enacted by the Queen in Council, or by a Minister under powers granted by an Act of Parliament, or by a subordinate body such as the Welsh Assembly.13 Called delegated legislation, it encompasses rules, orders, regulations and other forms such as orders in council, departmental orders, Church of England Measures and codes of practice.14 including bylaws.15 Rationale. Delegated legislation is made by ministers under powers given to them by parliamentary acts (primary legislation) in order to implement and administer the requirements of those acts.16 In other words, Parliament delegates the task of drawing up detailed regulations to the Queen in council or to the Ministers of the Crown. Their work, however, can be challenged in the courts on the grounds that specific pieces of delegated legislation are not properly based on powers given by acts.17 Types. These regulations cover every possible area from matters such as right of way, Customs and Excise, traffic regulations and planning matters to matrimonial causes. Rules, Orders or Regulations are Statutory Instruments (SIs) that make the bulk of delegated legislation.18 Controls. In delegating anyone the power to make an Order, Regulations and Rules, an Act specified the extent of that power. The secondary legislation then had to remain within the bounds of the powers specified in the Act. 19 There are grounds for invalidity as presented in latter passages. Delegated legislations may be scrutinised by the Courts and declared "ultra vires” or incompatible with the European Convention on Human Rights and quashed.20 This process is known as "judicial review" of the form of the decision (for vires, rationality, proportionality, compatibility with the European Convention on Human Rights. It does not, however, give the Courts a licence simply to substitute their own view of the best course of action for that of the minister.21 Controlling the exercise of power in delegated legislation is much more difficult because limits of the authority are not clearly defined. On the other hand, it is up to the Parliament, how wide or narrow it chooses when passing an enabling act, to give the minister or other subsidiary body powers. 22 When invalid. Specifically, according to how delegated legislative power is exercised, there are circumstances in which delegated legislation can be found to be invalid. 23 For example, it may be held to be ultra vires or invalid on the following grounds 24 - ● A failure to comply with any legal rules that control the making of the delegated legislation; ● It is not authorised by the empowering provision; ● It contains an unlawful sub-delegation; ● It is inconsistent with Acts other than the empowering Act; ● The power to make the delegated legislation has been exercised for an improper purpose; and ● The delegated legislation is uncertain in its application Advantages. The advantages of using delegated legislation are that it saves limited time in Parliament, allowing it to concentrate on principles and apply a fast change.25 Normally, the members of Parliament (MPs) lack detailed or technical knowledge, for example of specific details in terrorism. Use of delegated legislations allow quick response to new developments, (e.g. disease outbreaks), enables minor changes to statutes (e.g. punctuations in sentences that matter). Moreover, judicial review may be sought by parties with locus standi, (i.e. Persons sufficiently affected by the legislation), therefore time is not wasted by Parliament in having to study them all. Withdrawal or amendment of this kind of legislation is therefore easy.26 IV. Problems with delegated legislation Montesquieus theory. One of the main problems with delegated legislation is that it goes against Montesquieus theory, the separation of powers. The theory is that no three arms of the state, the judiciary, the executive and the legislative arm should have members that play a role in more than one arm. Accordingly, people who are involved in more then one arm of the state have too much power.27 The structure should provide a system of checks and balances between the different branches so that no one body can monopolise power to abuse it. David Cordery 28 claims political theorists have long pointed out the dangers of not observing separation of powers. Separation of powers is the idea that the powers of a sovereign government should be divided between two or more strongly independent entities, precluding any one person or group from gaining too much power. 29 This means the members of one branch of government cannot be a member of either of the other two branches.30 The phrase "checks and balances" was also coined by Montesquieu. "Checks" refers to the ability, right, and responsibility of each power to monitor the activities of the other(s); while "balances" refers to the ability of each entity to use its authority to limit the powers of the others.31 It is said, keeping each independent entity within its proscribed powers can be a delicate process, but public support, tradition, and well-balanced tactical positions can help maintain such systems.32 Disadvantages. There are disadvantages to using delegated legislation. Firstly, it implies that Parliament has insufficient time to scrutinise it or that Parliament is not reviewing legislation properly.33 With delegated legislation, so much is being produced, with only a scant number attracting media or political interest that much of these laws created remain effectively unannounced.34 In actuality, it is impossible for anyone to keep abreast of all delegated legislation. Much of these are not known about by the public and often lawyers. It is also undemocratic as most regulations are made by civil servants or other unelected people, except for local authority bylaws made by elected councillors.35 There is also an increasing number of statutory authorities, statutory officers, public officers, public servants and the like.36 It means that the volume of secondary legislation is very big, largely exceeding the number of Acts in Parliament. This has led then to the need for greater control of the legislative powers of the Executive. People may not be aware of the different instruments as more attention is drawn towards the Acts of Parliament through the media.37 According to Librarian Ann Lees 38 over 2,500 Statutory Instruments (SIs) are made every year. Others place a bigger figure than this. The lack of effective announcement also gives rise to the fear that controls may be being exerted by stealth.39 Further, as described by Mitchell and Dadhania, 40 too much secondary legislation can result in public awareness not keeping pace with the volume of new laws produced. Consider - “At the same time that the Control of Asbestos at Work Regulations 2002 came into effect in May 2004, there were reports in the legal media indicating that over half of all businesses were unaware of their duties regarding asbestos risk management. Even many solicitors, who might have to take the new regime into account in the procedures of conveyancing for non-domestic property, were ignorant of the scope and effect of the Regulations. It was later pointed out that upon taking effect as a piece of legislation over 700,000 UK businesses were in technical breach of the Regulations. For a breach of Regulation 4, firms can be prosecuted in the magistrates’ court or Crown Court, with fines up to an unlimited amount in the latter.” V. Delegated legislation: a practical necessity Delegated legislation is law made by somebody or something other than parliament. Though delegated, this kind of legislation is necessary, albeit on the surface, it goes against some constitutional principles. Some of those involved in lawmaking are not elected representatives of the people. As described by Hayden41 - “Orders in council are made by the Privy Council. The Privy Council is called in times of emergency, when parliament is not actually sitting. This is because in emergencies it may take too long for members of parliament to reach the House of Commons to make a decision on the matter. An example of this is the recent fuel strike where the Privy Council was called together to make a decision on the matter. This consists of the Queen, the Prime minister and appointed privy councilors.42 Although these Privy councilors are appointed by the queen, this is done so under the recommendations by the government. This makes them accountable to the public through the government. In this way the Privy Council is made even more accountable to the British public because what power the Privy Council has can be taken away at any time by government.43 Statutory instruments. These are passed by government ministers and departments through powers given to them by parent acts. With this kind of instruments, the problem may occur when the ministers dont have the technical expertise and time to keep an eye on all that is going on as this is the method that most law is made. The ministers then are not totally in control of this process because others may be involved.45 In sum, the main consideration is that parliament is not in the position to pass every piece of legislation that is needed because of time constraints and do this properly on account of technical expertise needed. VI. Conclusion Delegated legislation affects many people. The output is vast, and exceeds the output of Acts of Parliament. Delegated legislation plays an important part in the smooth running of Parliament and Law as a whole. However, Parliament cannot cope with the demand for new laws, hence delegating the responsibility to another body takes the burden off Parliament and allows the act to be passed faster. It can then be concluded that delegated legislation maybe considered a practical necessity that may undermine important constitutional principles but only to the extent that there are provisions for checks and balances. As Laurence Claus46 earlier explained, checks and balances are what would prevent people from determining the reach of their own powers – not separation of powers. For example, with the UK constitution, parliament can always overrule these pieces of delegated legislation through use of their affirmative and negative resolution procedures. With affirmative resolution situations the statutory instruments legislation will not become law until parliament says so. Negative resolutions means that legislation can be rejected by government. Also scrutiny committees are in place to monitor statutory instruments. Parliamentary sovereignty seems to be in direct opposition to the concept of separation of powers. In the British system, however, there is a considerable amount of de facto independence among agents employing various functions. Parliament actually is limited by various legal instruments, international treaties and constitutional conventions47 that sovereignty is at most symbolic. Largely, the implementation of the formal doctrine of the separation of powers is not the only way to address the dangers of monopolised power. True enough, a separation of powers is necessary to avoid the pitfalls of monopolised power. However, there are many ways to achieve this outcome, and the formal doctrine of the separation of powers is just one of them. Checks and balances are what the UK constitution has in store. Endnotes 1 Richard J. Terrill. ‘World Criminal Justice Systems: A Survey.’ (Cincinnati, Ohio: Anderson Publishing Company), 1984. In: Corretta, et al. 2002. 2 ‘A Constitutional Mugging.’ Parliamentary briefing on thee constitutional implications of The Criminal Justice & Public Order Bill; The Police & Magistrates Courts Bill; The Deregulation & Contracting Out Bill. Charter88. Campaign for a modern and fair democracy. Available at http://www.charter88.com/publications/briefings/mugging.html [Accessed 4 January 2006]. Charter88 supports no political party. It is an independent organisation that has over 80,000 supporters that believe there is a better way to run this country. Charter88 believes that people should have as much say as possible about how they are governed and the choices made for them. Charter88 demands that the Government makes decisions for people and not for itself. It is important that people believe this and that they can take an active part in the political process. Charter88 believes that there needs to be specific changes to the way that the political system is organised. (http://www.charter88.org.uk/about/about.html) 3 Ashutosh Salil & Tanmay Amar. (2005). ‘Constitutional Conventions: The Unwritten Maxims of the Constitution.’ Practical Lawyer (PL) Web Journal 3. Eastern Book Company. Lucknow. Available at http://www.ebc-india.com/lawyer/articles/2005_plw_3.htm. [Accessed 5 January 2005]. 4‘Constitution of the United Kingdom.’ Reference.com. Available at http://www.reference.com/browse/wiki/Constitution_of_the_United_Kingdom [Accessed 3 January 2006]. 5 Ibid. 6 Stephen Young. ‘Devolution in the United Kingdom: A Revolution in Online Legal Research.’ Law Library Resource Xchange, LLC. LLRX.com. 1 June 2001. Available at http://www.llrx.com/features/devolution.htm. [Accessed 2 January 2006]. 7 Reference.com, n.d. 8 Kevin Boone. ‘Separation of powers.’ Basic principles. Last updated 14 January 2004. Available at http://law.web-tomorrow.com/twiki/bin/view/Main/SeparationOfPowers [Accessed 5 January 2006]. 9 Ibid. 10 Ibid. 11 Nicola.McEwen. ‘Governing the UK.’ The UK Constitution. Last Updated 1 September 2003. Available at http://news.bbc.co.uk/1/hi/programmes/bbc_parliament/2561719.stm [Accessed 3 January 2006]. [Nicola McEwen is Lecturer in Politics, University of Edinburgh, and writes for BBC Parliament]. 12 ‘The UK Constitution.’ eurolegal.org. Available at http://www.eurolegal.org/britpages/ukconstset.htm[Accessed 2 January 2006]. 13 Ibid. 14 Chris Pond. ‘Delegated Legislation: the Procedure Committee report and proposals for change.’ Standard Note: SN/PC/469. Parliament and Constitution Centre. House of Commons. Last updated 13 February 2002. Available at http://www.parliament.uk/commons/lib/research/notes/snpc-00469.pdf [Accessed 2 January 2006]. [Standard Notes are compiled for the benefit of Members of Parliament and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise others]. 15 Coursework.info.uk, n.d. 16 Sarah Carter. ‘Delegated legislation & statutory instruments.’ How to find legislation. Information services. Templeman Library. The University of Kent at Canterbury. Last updated 9 January 2005. Available at http://library.kent.ac.uk/library/info/subjectg/law/troubleshoot/statutes.htm [Accessed 2 January 2006]. 17‘Delegated Legislation.’ answers.com. Available at http://www.answers.com/topic/delegated-legislation. [Accessed 6 January 2006]. 18 Ann Lees. ‘Law: Primary sources.’ Kings College London, United Kingdom. Last modified 16 May 2005. http://www.kcl.ac.uk/depsta/iss/schools/hlsp/law/primsourceslaw.html [Accessed 2 January 2006]. 19 ‘Policy-making and legislation.’ The legislative process. Volume 15: Government and Public Administration. The BSE Inquiry. The BSE Report. Bseinquiry.gov.uk. Available at http://www.bseinquiry.gov.uk/report/volume15/chapterg.htm [Accessed 2 January 2006]. 20 Reference.com, n.d. 21 Ibid. 22 ‘Secondary legislation is a necessary evil.’ Academic DB. Available at http://www.academicdb.com/secondary_legislation_is_a_necessary_evil_discuss_5578/ [Accessed 3 January 2006]. 23 ‘Guidelines on Process & Content of Legislation.’ Legislation Advisory Committee. Justice.govt.nz Available at http://www.justice.govt.nz/lac/pubs/2001/legislative_guide_2000/chapter_10a.html [Accessed 2 January 2006]. 24 Ibid. 25 ‘Cases - judicial creativity.’ Sixth form. Bournemouth and People College. Sixthformlaw.info The College online Available at http://sixthformlaw.info/02_cases/mod3/cases_precedent_law_making.htm [Accessed 4 January 2006]. 26 Ibid. 27 David Cordery. ‘Separation of Powers in Maldives.’ Friends of Maldives. 12 July 2004. Available at http://www.friendsofmaldives.org/documents/SeparationofPowersinMaldives.pdf[Accessed 5 January 2006]. 28 Ibid. 29 Reference.com, n.d. 30 Bryan Palmer. (2005). ‘Separation of powers.’ English law. Ozpolitics.info Available at http://www.ozpolitics.info/rules/sep.htm [Accessed 4 January 2006]. 31 Reference.com, n.d. 32 Ibid. 33 sixthformlaw.info, n.d. 34 Andrew Mitchell & Minel Dadhania. ‘Delegated Legislation.’ Cavendish publishing. 1 March 2005. Available at http://www.cavendishpublishing.com/companion_sites/update_text.asp?edition=778&chapter=8454 [Accessed 4 January 2006]. 35 sixthformlaw.info, n.d. 36 Bill Hayden. ‘Delegated legislation, subordinate legislation, the powers given to the Executive and the Public Service to make regulations, is an extremely important part of modern administration and lawmaking.’ Academic DB. Available at http://www.academicdb.com/delegated_legislation_subordinate_legislation_pow_10577/ [Accessed 3 January 2006]. 37 Ibid. 38 Ann Lees. ‘Law: Primary sources.’ Kings College London, United Kingdom. Last modified 16 May 2005. http://www.kcl.ac.uk/depsta/iss/schools/hlsp/law/primsourceslaw.html [Accessed 2 January 2006]. 39 Mitchell and Dadhania (2005) 40 Ibid. 41 Hayden, n.d. 42 Ibid. 43 Ibid. 44. Ibid. 45 Ibid. 46 Laurence Claus. ‘Montesquieus Mistakes and the True Meaning of Separation.’ University of San Diego Public Law and Legal Theory Research Paper Series. 22 September 2004. Available at http://law.bepress.com/sandiegolwps/pllt/art11/ [Accessed 4 January 2006]. 47 Reference.com, n.d. BIBLIOGRAPHY ‘A Constitutional Mugging.’ Parliamentary briefing on thee constitutional implications of The Criminal Justice & Public Order Bill; The Police & Magistrates Courts Bill; The Deregulation & Contracting Out Bill. Charter88. Campaign for a modern and fair democracy. 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Trench, Alan (2005). ‘Better Governance for Wales: An Analysis of the White Paper on Devolution for Wales.’ The Devolution Policy Papers No. 13. Walesoffice.gov.uk .Available at http://www. /2005/bgfw/bgfw_trench_alan_20050802.pdf [Accessed 4 January 2006]. Tufal, Asif. ‘The English Law.’ Law Teacher. net. Exercise on delegated legislation. June 2001. Available at http://www.lawteacher.net/Assignments/OCR%20ELS/AS12.htm [Accessed 7 January 2006]. Young, Stephen. ‘Devolution in the United Kingdom: A Revolution in Online Legal Research.’ Law Library Resource Xchange, LLC. LLRX.com. 1 June 2001. Available at http://www.llrx.com/features/devolution.htm. [Accessed 2 January 2006]. Read More