Delegated Legislation and Parliamentary Law Making - How Do They Compare?
It’s true to say that delegated legislation is not the most exciting of legal areas, but it’s an important topic to know about - there’s a huge volume of delegated legislation that has an impact on how we live our everyday lives.
Primary legislation is the acts made by parliament and requires the cooperation of the House of Commons, House of Lords and monarch in order to be passed.
Delegated legislation is law made by bodies other than parliament - but with the authority of parliament passed through the parent act, which is the mechanism by which parliament limit and control the power they pass by stipulating how it should be used.
There are 3 types of delegated legislation, each having its own purpose.
- Statutory instruments
Statutory instruments are made by government ministers in their departments.For example, the secretary of state for transport will be delegated the responsibility to make statutory instruments on their area of expertise. This type of delegated legislation is used for adding detail and updating existing laws, bringing EU law into force and setting a starting date for an act of Parliament.
Bylaws tend to have the greatest impact on our day to day lives.
Bylaws are made by local governments, such as city and town councils, as well as some private companies and charities. This allows those with the greatest knowledge about a particular area's problems have a say.
Manchester city council was given authority to make certain bylaws by the Local Government Acts 1972 and 1982 and used them to ban all skating and rollerblading on footpaths and highways.
- Orders in council
Orders in council are made by a body called the Privy Council, a group of 300 past and present government ministers that includes all the leaders of the main political parties, the speaker of the House of Commons and even the Queen.
The Privy Council acts using power delegated by the Emergency Powers Act 1920 and the Civil Contingencies Act 2004. They act in times of public emergency to transfer powers from one area of the government, and when parliament is not sitting.
So, delegated legislation and parliamentary laws appear to be quite similar but how do they compare?
Delegated legislation can be made very quickly and taken away very quickly, whereas parliamentary laws have to go through the whole process in both houses and gain royal assent before they come into force.
This means that a far greater volume of delegated legislation is made each year - there were 3486 new statutory instruments made in 2014 alone.
Sometimes parliament cannot act quickly enough - especially in emergencies! An order in council needs to be passed because they can be brought into force very quickly and removed just as fast - an order in council was used to stop flights in and out of the UK after the 9/11 terrorist attacks.
Delegated legislation can be taken away with immediate effect, whereas it requires another act of parliament to get rid of an act.
Delegated legislation can also be declared void by judges at judicial review if it was "ultra vires" (beyond the powers) or unreasonable - whereas the courts cannot question a parliamentary law.
Parliament makes laws on a very wide range of issues and, understandably, MP’s and peers will not have in-depth knowledge about every issue that comes before it.
Local councils have very good local knowledge when it comes to making bylaws in their area - such as Birmingham City Council making laws on the parking restrictions within the city.
Equally, individual ministers have an in-depth knowledge when it comes to making statutory instruments in their field of expertise - such as the minister in charge of the Department for Education being delegated the power through the Educational Reform Act 1988 to fill out the detail of the national curriculum.
The House of Commons is the most powerful part of parliament because members are elected by the public. Most bills are started here, and that means the parliamentary law making process is democratic.
Delegated legislation, on the other hand, is often made by people who are not elected. For example, bylaws made by private companies and some charities, such as the National Trust, to regulate the use of their land.
There also the issue that ministers making statutory instruments sub-delegate their responsibility to civil servants who are not elected.
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