Evaluation (Q3) Disadvantages of DL

Question 1

Firstly, delegated legislation is an undemocratic form of law making.
-Explanation

Answer 1

• DL is not debated by Parliament, except in the case Of SIs, subject to Affirmative Resolutions.
• SIs are written by unelected civil servants, and only ‘rubber-stamped’ by the relevant minister.
• The Queen and Privy Council are not elected, yet approve Orders in Council

Question 2

Firstly, delegated legislation is an undemocratic form of law making.
-Evidence

Answer 2

AKMQ & G v HM treasury. Arguably undemocratic as made without proper discussion in Parliament. The law was void.

Question 3

Firstly, delegated legislation is an undemocratic form of law making.
-WHY

Answer 3

This is a disadvantage because it means that these types of laws are not debated by Parliament who are elected to represent the public
Law should be debated and discussed properly by Parliament, especially if it involves serious criminal offences

Question 4

There is also limited parliamentary control

-Explanation

Answer 4

The majority of statutory instruments are dealt with by way of negative resolutions, which means they become law unless rejected by Parliament within 40 days.
Affirmative resolution is time consuming so is rarely used. Also the Scrutiny Committee has limited power. Court controls are rarely used so most DL that is ultra vires is never actually challenged.

Question 5

There is also limited parliamentary control

-Evidence

Answer 5

SI’s automatically become law within 40 days, even if they aren’t checked.

Question 6

There is also limited parliamentary control

-Why

Answer 6

This is a disadvantage because not all delegated legislation will be checked and therefore issues of concern may go un-noticed.

Question 7

there are limited judicial control over delegated legislation.
-Explanation

Answer 7

Judicial controls are dependent on cases being brought before the courts. This is unlikely because legal knowledge, finance and time is needed

Question 8

there are limited judicial control over delegated legislation.
-Evidence

Answer 8

In Boddington v BTP Lord Irvine set out that individual do have a right to challenge delegated legislation even if they are unlikely to do so.
Aylesbury – challenged after training board was set up

Question 9

there are limited judicial control over delegated legislation.
-Why

Answer 9

This is a disadvantage because judicial controls can only correct bad law, after it is enforced and only if it is challenged.

Question 10

Fourthly, there is a lack of publicity because delegated legislation is not debated by Parliament
-Explanation

Answer 10

The Government is the Executive and their power is to formulate policy, not make law as well, but they do when making an SI.

Question 11

Fourthly, there is a lack of publicity because delegated legislation is not debated by Parliament
-Evidence

Answer 11

AG v Fulham Corporation.

Question 12

Fourthly, there is a lack of publicity because delegated legislation is not debated by Parliament
-Why

Answer 12

Parliament should be the only law making body.
Judges should ensure the law made by Parliament is applied, not be declaring whether it is valid or not, which they do during the process of Judicial Review.
Judges have too much power.

Question 13

Additional disadvantage

Answer 13

Point = Finally, there is a risk of sub-delegation, whereby law making is passed on again.
Explanation = Statutory Instruments are often passed down to be made by civil servants and simply ‘rubber-stamped’ by the Minister of the department, rather than actually made by them.
Evidence = The transport minister might sub-delegate to civil servants working in the transport department
WHY= This is a disadvantage because it means the delegated legislation is not being made by the appropriate body as specified in the parent act. It also makes it difficult to control.