delegated legislation - United Kingdom, United States, Ireland

In the UK, provisions in an act of parliament whereby government ministers, local authorities, or other designated persons may supplement the legal rules in the parent act. The person to whom powers are delegated must operate within the powers conferred by the act; action which goes beyond this may be challenged in the courts. Delegated legislation has the advantage of permitting details to be added to the broad principles of legislation without the need for a new act of parliament and eases the pressure on parliamentary time. While there is some parliamentary scrutiny of certain delegated legislation, there is no doubt that the growth of this form of legislation reflects the relative strength of the executive branch of government. This is an increasing question of concern, because of the effective absence of parliamentary scrutiny of important statutory provisions.

The Politics series:
Politics by country Political science Political history Political scientists Comparative government International relations Political economy Political philosophy Political psychology Form of government Sovereignty Public administration Bureaucracy Street-level bureaucracy Consent of the governed Theories of political behavior
Subseries of Politics
Forms of government Anarchy Aristocracy Autocracy Democracy Despotism Dictatorship Monarchy Absolute monarchy Constitutional monarchy Oligarchy Single-party state Socialism Theocracy Tyranny Executives Legislature Elections Voting Electoral systems Ideology Political parties
Politics Portal This box: view • talk • edit

Delegated legislation (sometimes referred to as secondary legislation or subordinate legislation) is law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of the acts.

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. Secondary Legislation in Wales, in devolved areas, is passed by the National Assembly for Wales. The amount and scope of delegated legislation has mainly grown as a result of the increasing pressure on parliamentary time. In the context of Wales since 1999, Parliament has legislated knowing that the nature of the legislation could widen, (or narrow) the powers of the National Assembly.

Delegated legislation 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. 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. 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 Instrument are regulations made by government Minister and department.

Orders-in-Council are laws made by and with the advice of Her Majesty's Privy Council and are used, for transferring responsibilities between Government Departments, and under the Emergency Power Act 1920.

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.

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.

Advantages and Disadvantages

It is now generally accepted that delegated legislation not only has shortcomings but that it also has some advantages.

It allows Parliament to concentrate more on broad issues of policy rather than masses of detail.

Delegated legislation is more flexible than an Act of Parliament.

It has allowed for the National Assembly for Wales to make specific policy decisions for Wales. For example although the primary legislation concerning the National Health Service is by and large common to England and Wales, the structure of the service and the cost of prescriptions charges vary between the two countries.

A disadvantege of delegated legislation is in the sheer bulk of laws that get passed through its channels. Because the powers are delegated, and combined with the bulk of delegated legislation, the system becomes rather undemocratic due to those whom the legislations are delegated to being hard to make accountable.

United States

The U.S. and its constituent state governments subscribe to the nondelegation doctrine which reserves the power of making "legislation" exclusively to the elected Congress and state legislatures, respectively. 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.

Ireland

Article 15.2.1 of the Irish Constitution states:‘The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.’ However, for practical reasons, such as those outlined below, delegated legislation is used in many areas of the law.