In my last blog post, we looked at some of the advantages of secondary legislation and why it is used. In this blog post, we will consider the reverse of this – what the disadvantages of secondary legislation are. However, we will start by reminding ourselves what secondary legislation is and how it is made.
What is Secondary Legislation?
Secondary legislation is legislation that is not made by the whole of Parliament; instead, this responsibility has been delegated to a minister, a group of ministers or another body. This is why it is sometimes also called delegated legislation. It may also be called subordinate legislation, as it would not exist without an Act of Parliament granting the powers to make it. This Act of Parliament is called the parent or enabling Act, as it enables a minister or group to make the delegated legislation.
After the secondary legislation has been granted, it will be subject to review by Parliament. This may be affirmative, where Parliament has to approve the piece of secondary legislation, or negative, where it becomes law after a certain period of time if there are no objections from either House. One of the key benefits of secondary legislation is that it saves Parliamentary time. In addition, the group making it will all have their own expertise, so they can use this to make legislation as suitable as possible.
What Are the Disadvantages?
Undemocratic
One of the main disadvantages of secondary legislation is that it is undemocratic. Think about how primary legislation is made – in Parliament, by democratically elected MPs. If a piece of legislation is being delegated to a single minister, group of ministers or another body, they will not be a fair representation of how the population voted as a whole. As law-making should be a democratic process, this is a definite problem with secondary legislation.
However, this is not the case with bylaws created by local councils. Although these are still a type of secondary legislation, they are drafted by the local council. As the council is democratically elected by the local people, laws made by them are democratic. Secondary legislation is very useful in these scenarios.
On the other hand, when government ministers make secondary legislation, they may not actually be making it themselves, instead assigning the work to civil servants and quickly reviewing and approving it. This means that they aren’t even providing their own expertise as an advantage of secondary legislation; this is coming from other people.
In addition, ministers are at least elected by the public. The same cannot be said for civil servants, so this method makes the process of creating secondary legislation even less democratic. Secondary legislation may be sub-delegated in other ways too, to other parties, which again makes it undemocratic, as these parties cannot be held responsible by the public in the same way elected ministers can.
Hard to Keep Track of
The next disadvantage is that it is hard to keep track of all the secondary legislation made. There are around 3000 pieces made every year, so it is impractical for Parliament to review it all, which leads to it not being reviewed thoroughly. Trying to review it all, or even just some of it, means that Parliament loses a lot of time. As one of the main advantages of secondary legislation is the time it saves, this seems to defeat the point. However, it does take less time to review the secondary legislation than it does to draft it, so there is still some advantage here.
Lack of Review
As the majority of secondary legislation is made under the negative procedure, it does not even need Parliament’s approval. Instead, it is laid before Parliament and, if no objection is made within a fixed period (usually 40 days), the secondary legislation becomes law. As Parliament cannot realistically check all of this secondary legislation, it would be very easy for something that Parliament would not intend to become law to pass review.
Even when a piece of secondary legislation is subject to the affirmative procedure, meaning that it must be actively approved by Parliament before it becomes law, it is no guarantee that anything wrong with the secondary legislation would be spotted. This is again an issue of time, with Parliament not having enough space in its schedule to thoroughly review and debate each of these pieces of secondary legislation.
In addition, secondary legislation is not as well publicised as Acts of Parliament, so people will be less aware when it is created. This means that there is not as much opportunity for it to be challenged.
Secondary legislation cannot be reviewed by the courts without an individual first bringing a claim against it. This weakens the justice system’s chance to review the law, as this relies on a number of conditions. First, the individual must bring the claim in the first place. Next, it must proceed to a high enough court to change it. Finally, the individual must actually have the funding upfront to do this, which is not cheap. It is therefore hard for secondary legislation to be subject to a proper review procedure.
Wrapping Up
I hope that you now have a balanced view of the use of secondary legislation. Do feel free to ask any questions you have in the comments and come back in two weeks to find out about sources of law in the UK.
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