Delegated legislation (DL) is law made through a body other than Parliament but

with its authority which is usually laid out in a Parent Act or enabling Act which creates the
framework for the DL. The Act can grant specific or wide powers, such as the European
Communities Act granting the Privy Council powers to bring any European Directive into
effect. Parliament must delegate the legislative process because they do not have the time
to scrutinize every detail of complex regulations, neither do they have the technical
expertise nor knowledge required. Lastly, Parliament may not be able to pass law quickly
enough in times of emergency or update legislation for unforeseen circumstances.

There are 3 types of DL. Orders in Council is law made by the Privy Council, made up
of the leading members of government. They can transfer power between departments and
bring existing Acts of Parliament into force. They also have extra powers such as the power
to make law in emergencies through the civil Contingencies Act. Another type of DL is
statutory instruments, or rules and regulations made by the relevant government
departments and ministers. The use of Statutory Instruments is governed by the Statutory
Act 1946. Lastly, bylaws are laws made by a local authority to cover a small area, such as
traffic regulations and parking restrictions, usually made through section 235 of the Local
Governments Act. Some public companies that deal with the public can make bylaws too,
such as the British Railways which made the British Railway Board Bylaws through the
Transport Act. These different types of DL have their advantages and disadvantages, which
will be discussed in detail below.

DL helps Parliament save time and adds flexibility to the law. The legislative process
is lengthier and more thorough, consisting of many stages. When urgency is needed, this
can be detrimental by making statutes obsolete when finally put into force. Thus, DL such as
Orders in Council can rectify this problem by acting quickly, such as the Food Protection
(Emergency Provisions) Order which was passed only a few hours after the Chernobyl crisis
to prevent the slaughter or movement of sheep there. Ministers can also save time and
quickly pass law through the Legislative and Regulatory Reform Act, which allows ministers
to make any provision if it will lessen a burden such as an administrative difficulty, a
financial cost, or an obstacle to productivity. The law can quickly be amended so that it
remains up-to-date and practical.

Next, DL can be more detailed and technical. MPs may not have the technical
expertise about certain matters such as Health and Safety or local knowledge. Thus, DL like
statutory instruments are more appropriate as they can be drafted by professionals in the
relevant field. Even the Statutory Act states that a consultative stage is required for
Statutory Instruments. For example, legislation made though the National Insurance Act
must consult the National Insurance Advisory Committee. This makes DL both more detailed
and practical.

Another advantage of DL is that it is controlled in many ways to prevent its misuse.

Parliament has control of DL as they are the one who makes the Enabling Act which
delegated powers. Parliament can also revoke any DL or pass law on the same subject when
they do not agree with the DL. They have the power to do this through Parliamentary
Sovereignty. This means that the authority of Parliament is boundless because they are an
elected body made to represent the interests of the people forming the basis of democracy.
All DL is also published for public scrutiny with the government publishing an explanatory
memorandum to explain policy objectives but this is ineffective due to lack of publicity
through news coverage. However, Parliament can also use resolution procedures such as
the negative and affirmative resolution procedures to ensure that erroneous DL does not
automatically pass because it must not be rejected or must be expressly approved to pass.

However, DL has its fair share of drawbacks, One of which is the problems DL shares
with Parliament: its sheer number which causes difficulty in discovering what the present
law is. While it is true that all DL is published, which makes it more transparent and enables
it to be scrutinized in theory, it is hard to discover all DL related to a topic because of a lack
of clear connection between them all. DL which is amended by another piece of DL and
different sections are brought into force at different times increases complexity.

Nest, DL faces criticisms of being undemocratic. This is because for the case of
Statutory Instruments, it is unelected draftsmen that have the Power to make law. They
cannot be held accountable like MPs in the HOC who are elected by their constituents to
represent their wishes in contrast. Besides that, there is no process of debate when making
DL, meaning stakeholders cannot represent their interests. However, when DL is misused,
individuals can challenge it through the judicial review procedure where they bring a claim
to the Queen’s Bench Division of the High Court. The judge will review the DL to see if it is
ultra vires or gone beyond its enabling powers either substantively or procedurally such as
in Strickland v Hayes Borough Council, where DL was held as ‘too unreasonable’.

Lastly, sub delegation is rife when DL is made. This means that individuals who were
not originally given the power to make law do so because the authority has been handed
down another level. Much law is made by civil servants and only ‘rubber-stamped’ by their
minister without proper scrutiny because it’s convenient. Controls such as the Joint Select
Committee on Statutory Instruments can in theory review DL and check for defective ones
or the unexpected or unusual use of powers, but after that they can only draw Parliaments
attention to the matter. To rectify this the Committee should be able to require an
affirmative resolution procedure for the DL to ensure that ‘rubber-stamped’ DL gets proper
attention.

To conclude, while DL has its shortfalls, it is essential to the functioning of

government. However, the use of DL begs into question the doctrine of separation of
powers, as through DL the executive branch would be performing legislative functions.
However, if an appropriate balance between the power of departments can be achieved
while still upholding the principle of Parliamentary Sovereignty, the checks and balances
afforded by this system can still be achieved.