The advantages of using delegated
legislation are as follows:
• Timesaving
Delegated
legislation can be introduced quickly where necessary in particular cases and
permits rules to be changed in response to emergencies or unforeseen problems. The use of delegated legislation, however,
also saves parliamentary time generally. Given the pressure on debating time in
Parliament and the highly detailed nature of typical delegated legislation, not
to mention its sheer volume, Parliament would not have time to consider each
individual piece of law that is enacted in the form of delegated legislation.
• Access to
particular expertise
Related to the
first advantage is the fact that the majority of Members of Parliament simply
do not have sufficient expertise to consider such provisions effectively. Given
the highly specialised and extremely technical nature of many of the
regulations that are introduced through delegated legislation, it is necessary
that those who are authorised to introduce the legislation should have access
to the external expertise required to formulate such regulations. With regard to
bylaws, it practically goes without saying that local and specialist knowledge should
give rise to more appropriate rules than reliance on the general enactments of
Parliament.
• Flexibility
The use of
delegated legislation permits ministers to respond on an ad hoc basis to particular
problems as and when they arise, and provides greater flexibility in the regulation
of activity which is subject to the ministers’ overview.
CASE LAW
The foregoing
has highlighted the increased importance of legislation in today’s society but,
even allowing for this and the fact that case law can be overturned by legislation,
the UK is still a common law system, and the importance and effectiveness of
judicial creativity and common law principles and practices cannot be
discounted. ‘Case law’ is the name given to the creation and refinement of law
in the course of judicial decisions
Evaluation
The foregoing
has set out the doctrine of binding precedent as it operates, in theory, to control
the ambit of judicial discretion. It has to be recognised, however, that the doctrine
does not operate as stringently as it appears to at first sight, and there are particular
shortcomings in the system that must be addressed in weighing up the undoubted
advantages with the equally undoubted disadvantages.
Disadvantages of
case law
It should be
noted that the advantage of flexibility at least potentially contradicts the alternative
advantage of certainty, but there are other disadvantages in the doctrine which
have to be considered. Amongst these are the following:
• Uncertainty
This refers to the
fact that the degree of certainty provided by the doctrine of stare decisisis
undermined by the absolute number of cases that have been reported and can be
cited as authorities. This uncertainty is compounded by the ability of the judiciary
to select which authority to follow, through use of the mechanism of distinguishing
cases on their facts.
• Fixity
This refers to
the possibility that the law, in relation to any particular area, may become
ossified on the basis of an unjust precedent, with the consequence that previous
injustices are perpetuated. An example of this was the long delay in the recognition
of the possibility of rape within marriage, which was only recognised a decade
ago
•
Unconstitutionality
This is a
fundamental question that refers to the fact that the judiciary are in fact overstepping
their theoretical constitutional role by actually making law, rather than
restricting themselves to the role of simply applying it. It is now probably a commonplace
of legal theory that judges do make law. Due to their position in the constitution,
however, judges have to be circumspect in the way in which, and the extent to
which, they use their powers to create law and impose values. To overtly assert
or exercise the power would be to challenge the power of the legislature. For an
unelected body to challenge a politically supreme Parliament would be unwise, to
say the least
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