Evaluate the controls over Delegated Legislation.
Delegated Legislation arguably contradicts the values of democracy by allowing unelected bodies and people to have the power to create legislation. The term delegated means to assign power to, and when referring to this in a legal context, it is where bodies other than the Houses of Parliament have been permitted to create laws. This may be through Orders in Council, By-Laws or statutory instruments.
The amount of power a body external to Parliament has is always limited. To create any secondary legislation it must both fit under the guidelines of, and follow the correct procedure of the enabling (parent) Act under which Parliament have made. An example of this may be the National Trust Act 1907 which allowed Directors of the National Trust to regulate behaviours such as nudity on their property. The Act itself will have set rules as to what they are allowed to regulate and how they must go about it and if they were to not do this, it is likely that a Parliamentary Committee such as the ???Delegated Powers Committee??? would pick up on this and have Parliament call for some form of Resolution Procedure and make these By-Laws exempt.
It is also arguable that all delegated legislation still is created with democracy: after all, it is the elected representatives which delegate the power to begin with and also, all delegated legislation should follow stages of consultation where experts and often the public are allowed to give their own inputs and feedback on any proposed laws. All delegated legislation should also be publicly available somewhere too, so in theory, any law is available for public scrutinisation. An example of this was the ???R v Wood??? case of 1855 where the Minister of Health had implemented a bye-law saying snow had to be removed from pathways as it was a ???unhygienic substance???. With public support, and also a court intervention claiming the bye-law was Ultra Vires, R was not charged for not having cleared the snow.
Parliament have the power to remove any Delegated Legislation through Affirmative and Negative Resolution Procedures. Affirmative Resolution Procedure then means that any created legislation through an enabling Act must be approved by both Houses of Parliament within 40 days for it to be valid. The use of this is somewhat rare and is most often apparent when the concerned legislation is of high importance. Negative Resolution Procedure is much more commonly used and is where that any new delegated legislation will be presented to Parliament as is still valid so long as no MP rejects it within 40 days.
Keep reading →
