Date: Monday, 13 April 2015
Delegated Legislation - Evaluation
Lesson Outcomes:
Describe the advantages of
delegated legislation
Specification Link: Advantages
and disadvantages of delegated
legislation.
Describe the disadvantages
of delegated legislation
Starter: Try to recall 3 advantages of delegated
legislation
1
The Task
Each pair has a card with either an
advantage or disadvantage of delegated
legislation written on it.
1) Summarise the advantage/disadvantage
in your own words
2) Swap with a neighbour!
Advantage #1 – Time Saving
• Delegated legislation saves Parliament time.
• There is often only enough time in the
parliamentary session to
• pass all Government Bills introduced.
• There is very little time left for other types of
Bills - 3,000 statutory instruments
• Delegated legislation can be passed quickly
- emergencies.
• Parliamentary procedure would take too long
• This would be wholly inappropriate and
ineffective in emergency situations.
3
Advantage #2 – Specialist knowledge
• People with specialist knowledge are involved in the
preparation of delegated legislation.
• Parliament does not necessarily possess this
specialist knowledge.
• E.G. local councils have greater knowledge of the
local area. (Devil’s Bridge)
• Government Ministers and their civil service
departments have considerable technical knowledge
within their particular area of
• responsibility. (e.g. Cableway Installation
Regulations 2004, made by the Transport Minister in
order to comply with a European Directive, required
detailed technical knowledge of cablecars, drag lifts
and ski lifts, etc.)
4
Advantage #3 – Parliamentary control
• There is some control over delegated legislation .
• Statutory instruments are subject to affirmative or
negative resolutions or are scrutinised by the
Scrutiny Committee.
• By-laws must be approved by the relevant Minister
• A judge can declare any delegated legislation which
has gone beyond its powers void.
• This range of control should ensure that all
delegated legislation conforms to the requirements
of the parent Act and therefore the will of
Parliament.
5
Advantage #4 – Democratic
• To an extent, democratic because
Government Ministers, who are
responsible for issuing statutory
instruments and who also approve bylaws, are elected.
• Local councillors, responsible for making
by-laws, are also elected.
• Orders in Council are drafted by the
Government, though they are approved by
the Queen and Privy Council, neither of
which is an elected body.
6
Disadvantage #1 – Partly
Undemocratic
• To an extent undemocratic.
• Delegated legislation is not debated by Parliament,
the exception being those statutory instruments
subject to the affirmative resolution procedure.
• Statutory instruments are drafted by unelected,
permanently employed civil servants and often only
rubber-stamped by the appropriate Minister.
• As discussed above, the Queen and Privy Council
are not elected yet approve Orders in Council.
7
Disadvantage #2 – Lack of publicity
• Delegated legislation is insufficiently publicised.
• Because delegated legislation is not debated by
Parliament there is not the same opportunity for the
press to raise public awareness of it as there is with
an Act of Parliament.
• This, added to the fact that there is no general
effective way to publicise delegated legislation,
means that an enormous volume of law is passed
without the public being aware of it.
• Much remains unpublicised after coming into force.
8
Disadvantage #3 – No effective control
• There is lack of proper control.
• Many of the parliamentary and judicial
controls are limited in effect. For example, not
all statutory instruments are subject to an
affirmative or negative resolution and those
subject to the latter may be overlooked.
• Judicial controls are dependent on a person
challenging the validity of the law, which due
to limited knowledge, finance and time, rarely
occurs.
• Consequently some delegated legislation that
is ultra vires is never challenged, and so
remains in force.
9
Disadvantage #4 – Contradicts separation of
powers
• Some delegated legislation offends the doctrine of
separation of powers.
• No-one should be a member of more than one of the
three branches of power, and the three branches should
operate separately from each other.
• They should not perform each other's duties. The
executive is the Government and is responsible for
formulating policy.
• In theory Government Ministers should not also be
making law.
• The legislature is the Houses of Parliament and is
responsible for making law.
• The judiciary should ensure the law passed by
Parliament is applied.
• According to this theory they should not be declaring
whether the law is valid or not.
10
Disadvantage #5 – Risk of sub-delegation
• There is a risk of sub-delegation where the
body or person who has been given the
power to make law may pass this power
down to another.
• For example, statutory instruments are
supposed to be made by Government
Ministers.
• In reality they often merely rubber-stamp
laws actually made by their civil servants.
11
Pulling it all together!
“Describe the advantages and
disadvantages of delegated legislation”