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Evaluate the advantages and disadvantages of secondary legislation. Does the power to make such legislation mean an abdication by Parliament of its responsibilities as the supreme law-maker? In the simplest of terms, legislation is law made by parliament. There are two types of legislation, primary legislation and secondary legislation. Primary legislation is an act of parliament, i.e law created by parliament that prevails over every other type of law. Secondary legislation on the other hand is law made by any other body other than parliament, and is also sometimes referred to as delegated legislation or subsidiary legislation. It can be made by bodies such as a privy council, the secretary of state, local authorities or a committee of judges. There can be viewed both advantages and disadvantages in secondary legislation. Another term for secondary legislation acts is commencement orders. These are made in large groups each year and are as much as part of the law as Acts of Parliament. One apparent disadvantage of secondary legislation here is that parliament generally considers these acts, or "orders", extremely perfunctorily, or sometimes do not even consider them at all.In 185, the secondary legislation passed in Britain included;
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the Motor Cycles (Eye Protectors) Regulations 185; the Pushchairs (Safety) Regulations 185; and the Gipsy Encampment (Designation of the Borough of Ipswich) Order 185.With regards to theses regulations, it should be seen that Parliament would not be looked upon as spending its time wisely if it debated at length the issues raised in them. I think this raises the debate of whether Parliament is being undermined as the supreme law-maker or whether secondary legislation is of great advantage to a country because it leaves time for parliament to concentrate on more pressing matters. Orders such as the ones mentioned above are known as statutory instruments, or SIs. Another example is shown below; Consumer Credit (Quotation) Regulations 180 under the Consumer Credit Act 174. Where an SI only affects Northern Ireland, it will have the words "NI" before the word "Rules" or "Regulations", for example; Emergency Provisions (Compensation) (NI) Rules 11.Another important aspect of secondary legislation which can be looked at is Orders-in-Council. These are orders made by the Queen on the advice of the privy council, and made in respect of "transferred matters" (in Northern Ireland's case where Stormont has competence, unless, like the present time, it is suspended). This process can also involve senior civil servants, ministers, the office of legislative council and a degree of public consultation. I think the mention of Orders-in-Council here can point to the fact that although secondary legislation acts have the right to be made law, it is still ultimately Parliament who decide, because any draft has to be approved by Parliament. However it is necessary to point out here a "negative" procedure. This is where secondary legislation takes effect unless Parliament annuls it within forty days. This procedure will only take place if the order is so small or insignificant that Parliament overlooks it, or if there is no time within one forty day period to examine the order. The fact that secondary legislation relies on Parliamentary control should show that by no means has Parliament taken part in an abdication of its responsibilities as the supreme law-maker.Although secondary legislation can be made by bodies outside of Parliament, it still has a number of controls and stages to go through. Not only is there Parliamentary control, but there is also a joint select committee and the examiner for statutory rules. There is also judicial control, also known as ultra vires, shown in the case example R. (Hume) v. Derry Justices ( 17) R v Secretary of state for Health (1).Secondary legislation can be introduced to parliament in the form of a "bill", which is in effect the embryo of an act, giving specific legal details that form the particular act. Parliamentary counsel can draft this bill. Subject to a parliamentary timetable, the bill is introduced in parliament and goes through five stages. These stages are as follows;(i) first reading which is a formality, i.e there is no debate here.(ii) Second reading which is basically the same(iii) Committee stage here there is deliberation in great detail.(iv) Report stage(v) Third reading this is the end of proceedings in the first house, ( which is the house of commons).The bill then goes to the house of lords, where the same steps are repeated. If changes are proposed here, and the house of commons agree, then everything is fine. However if there is a stalemate, it will last for a year, after which the house of commons can pass law. After this, the bill then goes to the Queen for Royal Ascent.If a piece of secondary legislation is to be broken down into different features, we will see it has a number of different sections. Firstly there is a number, followed by a date, enacting words, articles, sections, marginal notes (which summarise the content of each section), definition section (which defines words in each section), a short title and finally schedules.In Northern Ireland, there have been six Parliaments responsible for NI law, which are as follows;(i) Parliament of Eire 110-1800(ii) Parliament of England 16-1707(iii) Parliament of Great Britain 17071800(iv) Parliament of UK 1800-present(v) Parliament of Northern Ireland (Stormont) 11-17(vi) NI Assembly, 174 (presently suspended)I think there is also room to look at the interpretation of statutes when tackling this particular assignment. There are three different rules of statutory interpretation. First is The Literal Rule, where a judge takes the literal meaning of the words in a law, whether the result is sensible or not. This came up in the case of R. v. Maginnis (187). A particular advantage of this rule is that it promotes certainty, but its criticisms are levelled at the fact the rule is based on a false premise, dictionary meanings can be misleading, it cannot be used for general words, and also because it encourages defeatism and laziness in judges.The next rule is The Golden Rule, and this comes into effect if the application of the literal rule produces a "…manifest absurdity or very great inconvenience or inconsistency" (Venkat, 1/10/00), and means court can give a reasonable meaning to the words being construed. An example in this case can be found when looking at the case of Alder v. George (164), regarding the Official Secrets Act. An advantage of this rule is that it protects the court from egregious foolishness, i.e prosecuting someone for something that is ridiculous when the words of the law are taken seriously, or vice-versa (e.g. in the 184 Alder v. George case, the defendant was caught in a restricted area, but argued he was in the clear because he was actually inside the area, and not in the vicinity as the law stated was the prohibited region). Criticisms of this rule come because it only comes into play when the application of the literal rule leads to absurdity, i.e. it is dependant on the literal rule. Also too there is no way of predicting when the courts will apply it, therefore it is rather erratic.The final rule is known as The Mischief Rule, and is also sometimes referred to as the "purposive" approach. This rule requires judges to consider three factors, namely what was the law before statute was passed, what "mischief" was sought to be remedied, and what remedy was being provided. An example of this rule being applied can be found in the case of Corkery v. Carpenter (151), regarding the Licensing Act. Advantages can be found in this rule in the fact that it encourages the court to have regard to context, but criticisms point out how can judges be expected to know the will of parliament?These rules show us how judges do not employ strict rules of interpretation, but to a certain extent they select which "rule" to use in accordance with the result they seek to achieve in the case before them. Referring back to the assignment title here, it should be seen that while many judges plead to be seeking the will or intention of Parliament in applying these rules, it is admitted by some, such as Lord Denning, that "we fill in the gaps". This points us to us that judges, and not parliament, here have the job of upholding secondary legislation, but the fact that judges do it to "please" Parliament shows the power of it as the supreme law-maker also. In my opinion, I think secondary legislation brings with it more advantages than disadvantages. By allowing a body other than Parliament to make a law, it eases the pressure on a parliament which has to cope with the full brunt of a country's problems. For example, a law passed by a local council on the erection of a street lamp or a bus shelter would not be of as the same pressing nature as issues such as the peace process in Northern Ireland, or in England the problem of immigration. Therefore it makes sense to let smaller bodies pass smaller laws, as it would be totally unfeasible for a Parliament in any country to deal with every law within every area of the country. In effect, I don't think secondary legislation undermines Parliaments' responsibility as the supreme law-maker, because Parliament, whether directly or indirectly, controls the whole law. Secondary legislation may just ease pressure on Parliament in some aspects of law-making, without taking away any power or control.
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