Advantages and Disadvantages of Delegated Legislation


Advantage: Time Saving

Delegated legislation saves Parliament time. Parliament does not have enough time to pass all the new detailed and local laws required each year. There is often only enough time in the parliamentary session to pass all Government laws introduced. There is very little time left for other types of bills, and making over 3000 statutory instruments as well as local by-laws and emergency provisions each year would be impossible.

Delegated legislationcan be passed quickly to deal with situations when they arise, and in emergencies. If it was necessary to follow the parliament procedure, it would take too long before the law was introduced. This would be wholly innapropriate and ineffective in emergency situations. 

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Disadvantage: Partly undemocratic

The process of making delegated legislation is to some degree undemocratic. Delegated legislation is not debated by Parliament, except in the case of statutory instruments subject to the affirmative resolution procedure. Statutory instruments are drafted by unelected, permanently employed civil servants,  and are often only rubber-stamped by the appropriate minister. As discussed above, the Queen and Privy Council are not elected, yet they approve Orders in Council. 

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Advantage: Produced with specialist knowledge

People with specialist knowledge are involved in the preparation of delegated legislation. Parliament does not necessarily possess this specialist knowledge. For example, local councils have greater knowledge in the local area. Bristol City Council has severalby-laws relating to the Clifton and Durdham Downs. These by-laws regulate behaviour on the Downs, and amongst other things, prohibit vehicles and grazing. Government ministers and their civil service departments have considerable technical knowledge within their particular area of responsibility. For example, the Cableway Installation Regulations 2004, made by the Transport Minister in order to comply with a European Directive, required detailed technical knowledge of cablecars, drag ligts and ski lifts etc

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Disadvantage: Lack of publicity

Delegate legislation is insufficiently publicised. Because delegated legislation is not debated by Parliament, there is not the same opportunity to 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. 

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Advantage: Parliamentary Control

There is some control over delegated legislation. In Parliament, 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, and a judge can declare void any delegated legislation that has gone beyond its powers. This range of control should ensure that all delegated legislation conforms to the requirements of the parent Act and therefore the will of Parliament. 

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Disadvantage: No effective control

There is a lack of proper control. Many of the parliamentary and judicial controls are limited in effect. For example, not all statutory instruments are subject to the affirmative or negative resolution, and those subject to the latter may be overlooked. Judicial controls are dependant on a person challenging the validity of the law, which rarely occurs due to limited knowledge, finance and time. Consequently, some delegated legislation that is ultra vires is never challanged, and so remains in force.

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Advantage: Democratic

Delegated legislation is, to an extent, democratic. Government ministers, who are responsible for issuing statutory instruments and who also approve by-laws, are elected. Local councillors, responsible for making by-laws, are also elected. Orders in Council are drfted by the Government, although they are approved by the Queen and Privy Council, neither of which is an elected body.

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Disadvantage: Contradicts the separation of powers

Some delegated legislation offends the doctrine of separation of powers. Under this doctrine there are three branches of power: the executive, the legislature, and the judiciary. 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.

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Disadvantage: Risk of sub-delegation

There is a risk of sub-delegatioin where the person or body that 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-stap laws actually made by their civil servants.

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