Delegated legislation
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Delegated legislation (sometimes referred to as secondary legislation or subordinate legislation) is law made by ministers under powers given to them by parliamentary acts (primary legislation) in order to implement and administer the requirements of the acts. It has equal effect in the judiciary although ministers can be challenged in the courts on the grounds that specific pieces of delegated legislation are not properly based on powers given by acts.
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United Kingdom
In the United Kingdom, delegated legislation, typically, is made through the force of statutory instruments in the form of ministerial regulations, orders in council, and codes of practice. The amount and scope of delegated legislation has grown as a result of the increasing pressure on parliamentary time.
Controversy
- Advocates suggest that it represents an efficient way of relieving Parliament, that much of its subject-matter is uncontroversial, and that Parliament voluntarily gave up power in such irksome business.
- Critics object to the growing legislative autonomy of the executive from Parliament, and point out that deeply controversial matters, such as immigration rules, have been treated as delegated legislation.
Increasing political concern was reflected in the House of Lords' successful defeat in February 2000 of an affirmative instrument by which government sought to deny candidates a free mailshot in the 2000 London Mayor election. Devolution to Northern Ireland (1998) and Scotland (1999) means that the assembly and parliament respectively make their own arrangements for primary and delegated legislation. The creation of the National Assembly for Wales (1999) established an elected institution that is unique in being solely responsible for the creation, scrutiny, and implementation of delegated legislation from primary legislation still drawn up by the UK Parliament.
Examples of where Delegated Legislation may apply
Statutory Instruments – by Government Departments Bye Laws – Local Authorities, Public/Nationalize bodies Orders in Council – Government, Times of Emergency
Delegated Legislation affects many people. The output of delegated legislation is vast, and exceeds the output of Acts of Parliament. Examples of this are Safety Laws in Industry, Road Traffic Regulations, Rules relating to State Education.
Why is there a need for Delegated Legislation?
Delegated legislation plays an important part in the smooth running of Parliament and Law as a whole. Parliament cannot cope with the demand for new laws, and so delegating the responsibility to another body takes the pressure off Parliament and allows the act to be passed faster, as it does not have to travel through the system as shown earlier.
This type of legislation can be more subject specific, using technical knowledge from qualified individuals, creating a more thorough, detailed and smoother running piece of legislation. Delegated legislation can also be put into place if problems arise with existing legislation, as it is not feasible to take into account every aspect and every future problem when creating the legislation in the first place.
For example, if a new piece of legislation needs to be introduced regarding the running of hospitals, there may only be few members of parliament in the medical profession, and so there would not be the necessary background knowledge in Parliament. In this case, Parliament may delegate the responsibility of creating the legislation to the British Medical Association.
Examples of how Delegated Legislation is controlled are as follows: Consultation – those in the profession, as shown above, are consulted with regards to the subject (e.g. BMA with respect to legislation involving hospitals).
An example of delegated legislation and its effects can be seen in Wolverhampton with the recent introduction of banning drinking in public places (e.g. West Park, Dudley Street). This is to help cut down on drink related crimes.
Advantages and Disadvantages
Delegated legislation can be passed quickly, saves Parliament time, is more specific and may be designed by those with the best technical knowledge on the area it will be used for. However, it takes the power away from Parliament and so it may be misused.
United States
The U.S. and its constituent state governments reserve the power of making "legislation" exclusively to the elected Congress and state legislatures, respectively. However, these legislative bodies often delegate the power to make binding regulations to executive branch agencies, commissions, and other bodies. These regulations effectively have the same legal status as delegated legislation.
The Supreme Court has ruled that the Constitution permits Congress to delegate legislative power to other officials only if it establishes specific criteria for those officials to apply in adopting regulations. Since 1937, however, the court has approved very broad criteria (such as requiring that rules be "consistent with the public interest") that give the rulemaking officials virtually unlimited discretion. See Article I of the United States Constitution.