Delegated Legislation +/- Flashcards
Give the first advantage of Delegated Legislation
Saves Parliament time as Parliament has 650 MPs in the HofC so any Acts passing involves a lot of debate and thus time. For example, the Health and Safety at Work Act 1974 allows the Minister of Work and Pensions to make regulations about health and safety in workplaces. This lets Parliament concentrate on other more currently relevant matters such as budgets and Brexit. However, this does mean unelected people make the law, meaning delegated legislation is undemocratic.
Give the first disadvantage of Delegated Legislation
Delegated legislation is undemocratic. The Privy Council is made up of not only elected MPs but also unelected judges and bishops. Also statutory instruments are often made by unelected civil servants, such as the instrument passed in 2012 by the Minister of Justice restricting immigrant’s rights to legal aid, this was then challenged in court and it was decided to be made ultra vires and not necessarily represent what the public want (which is the purpose of democracy). However, Parliament don’t have time to make laws about everything so they have to trust others to make less important laws while they focus on more relevant matters like Brexit.
Give the four advantages of Delegated Legislation
Saves Parliament time (Health and Safety at Work Act)
Can apply to local areas (excess drinking in part of town)
Can be made with specialist knowledge (PACE 1984 - police codes)
Lots of controls from Parliament + courts (scrut comm check if ultra vires + ATB v Aylesbury Mushrooms)
Give the second advantage of Delegated Legislation
Can apply to local areas, enables local councils to make by-laws meaning they can assess the needs of the locality and make laws to deal with specific issues. For example, if there is a problem with excess drinking in a certain part of town then a local council can pass a by-law making that area alcohol-free. This is good because the law can be made by those who know the area better than Parliament do. However, this results in thousands of by-laws every year meaning people may not even know the laws in their area which is very problematic and ineffective
Give the second disadvantage of Delegated Legislation
The volume of delegated legislation made is also a problem. Thousands of statutory instruments and by-laws are created every year, with little publicity. For example, when the British Airports Authority passed a by-law stopping passengers taking tennis rackets on planes. A passenger was fined despite not knowing he did anything wrong. This is bad because it is impossible for an average person to be aware of all these laws, meaning the public don’t know what’s illegal. However, one reason there is so much delegated legislation is because local areas have their own by-laws that are tailored to a specific area.
Give the four disadvantages of Delegated Legislation
It is undemocratic (2012 Minister of Justice immigrants legal aid)
Volume of DL is 1000s per year (British Airports Authority - tennis rackets)
Can be complex and require judges to interpret wording (Rogers v Swindon NHS Trust - meaning of ‘exceptional’ for use of medicinal drugs)
Controls rarely effective (3600 reviews, 184 went ahead, Gov lost 40%)
Give the third advantage of Delegated Legislation
Can be made with specialist knowledge, statutory instruments allow Government ministers to make rules for their area of speciality. For example, PACE 1984 allows the Minister of Justice to set police codes of practice with their criminal justice system knowledge. This is good as these rules may need to be complex and require specific knowledge which Parliament (as a whole) will not have, meaning they would make the law less effectively than these individuals. However, this means the act may be written in specialist language and hard to apply and interpret, making it ineffective.
Give the third disadvantage of Delegated Legislation
Delegated legislation can be complex, like acts of Parliament they are often long and complicated and require judges to interpret wording to understand. For example in Rogers v Swindon NHS Trust the case involved technical rules on medicinal drugs, the court had to decide what was ‘exceptional’ in relation to medical needs. It is hard for the public to understand the law and how they apply in practice. However, a reason for this may be that they are created by people with special knowledge, so it is made with expertise.
Give the fourth advantage of Delegated Legislation
There are lots of controls from Parliament and the courts. For example, the scrutiny committee check if statutory instruments are ultra vires for Parliament. In ATB v Aylesbury Mushrooms, the correct procedure was not followed and the courts declared the legislation as void. This is good because it ensures that delegated legislation works as Parliament intended. However, the controls are not totally effective because the scrutiny committee can only refer cases to Parliament and very few judicial reviews are actually successful or even actually go ahead.
Give the fourth disadvantage of Delegated Legislation
The controls are not always effective. For example, the scrutiny committee can only refer problems to Parliament and hope they decide to take action, and very few judicial reviews are actually successful. In 2018, nearly 3600 reviews were requested but only 184 cases went ahead and the Government lost 40%. This means that a lot of bad delegated legislation being made is not resolved, which is problematic. However, it is still possible that courts are able to solve the problem in the cases they do hear, and having the scrutiny committee to check work for Parliament is still beneficial.
