Disadvantages

There are some disadvantages too - even dangers - in the delegation of legislative power, and a number of examples may be given:

• The limited scrutiny given to delegated legislation may lead to incomplete or imperfect instruments passing into law. The Air Navigation Order 1995 was followed less than three months later by the Air Navigation (No.2) Order 1995, which revoked and replaced the earlier order and was made expressly "to remedy defects and printing errors".

• Delegated legislation can be difficult to locate, even for lawyers. There is nothing in the parent Act to show how many statutory instruments have been made under it (though there are reference books in specialist law libraries), and there is no subject index to statutory instruments on the Internet. For local bye-laws the situation is even worse: these are not available even in major public libraries, and there is no easy way of knowing what bye-laws have been made within a given area.

• An enabling Act may be so brief as to enable a Minister to legislate not just on detail but on policy, which should be the concern of Parliament.

• Emergency Powers (Defence) Act 1939 s.1(1)

​His Majesty may by Order in Council make such Regulations as appear to him to be necessary or expedient for securing the public safety, the defence of the realm, the maintenance of public order and the efficient prosecution of the war, and for maintaining supplies and services essential to the life of the community.

• Defence Regulation 18B

(1) If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations ... he may make an order against that person directing that he be detained.

• Defence Regulation 29BA

(1) The Minister of Labour ... may direct any person in Great Britain to join the Special Constabulary, the Royal Observer Corps, or the National Fire Service, or to enter the service of any local authority ...

• Defence Regulation 39BA

(1) Any person who publishes any report or statement relating to matters connected with the war which is likely to cause alarm or despondency shall be liable ... to imprisonment for one month ...

• Most people would accept that drastic curtailment of individual freedom was necessary and justified when the nation was engaged in a war for its very survival, but it shows how wide delegated legislative powers can be.

• A "Henry VIII clause" may allow the Minister or other body to alter statutory provisions in this or another Act. The name probably comes from a statute (31 Hen VIII c.8, repealed by 1 Ed VI c.12) which provided that "The King ... may set forth proclamations ... which shall be observed as though they were made by Act of Parliament.". Henry VIII clauses are effectively a creature of the past thirty years: before then they were very rarely included in statutes (and even more rarely used), but now they have become quite common. Such a clause is useful where the Act may conflict with a large number of local Acts that may not be easily identifiable in the beginning, to allow either the old or the new Acts to be amended as necessary, but can be taken to extremes.

• Deregulation and Contracting Out Act 1994 s.1(1)

​If with respect to any provision made by an enactment a Minister of the Crown is of the opinion that its effect is to impose a burden affecting the carrying on of any business, and that it would be possible to remove the burden without removing any necessary protection, he may by order amend or repeal that enactment.

• [The Act provides for consultation with affected parties and an affirmative resolution (following sixty days' scrutiny) in each House, but is still a very wide-ranging legislative power. While this Act was being debated in the House of Lords, Earl Ferrers (the responsible Government minister) said in reply to a question by Lord Renton that the power could not be used to repeal primary legislation, but this seems to contradict the clear words of the statute.]

• The Lord Chancellor (Lord Mackay) expressed the view in 1990 that all powers exercisable under Henry VIII clauses should require an affirmative resolution procedure, but this is not a rule of law and is not always observed.

• Pollution Prevention and Control Act 1999 s.2

(1) The Secretary of State may by regulations make provision for any of the purposes listed in ... Schedule 1 [which lists a broad range of purposes related to the prevention and control of environmental pollution].

(3) Regulations under this section may ... contain such consequential, incidental, supplementary, transitional or saving provisions (including provisions amending, repealing or revoking enactments) as the Secretary of State considers appropriate ...

(7) A statutory instrument containing regulations under this section ... shall be subject to annulment in pursuance of a resolution of either House.

• The Minister or other delegate may use his powers to defeat the purpose of the Act. A provision authorising the Minister to bring an Act into force bit by bit, for example, may be abused to delay indefinitely the implementation of provisions designed to benefit the citizen.

• R v Home Secretary ex p Anosike [1971] 2 All ER 1405, DC

A 15-year-old Nigerian boy sought certiorari to quash decisions refusing him admission to the UK and requiring him to leave, and claimed the right to appeal to an independent adjudicator under the Immigration Appeals Act 1969. Refusing the order sought, the court said s.24(5) of the Act allowed the Home Secretary to appoint the day on which each part of the Act came into force, and the commencement order had expressly excluded the subsections giving rights of appeal against refusal of admission and directions for removal.

• R v Home Secretary ex p Fire Brigades Union [1995] 2 All ER 244, HL

The Criminal Justice Act 1988 provided for a Criminal Injuries Compensation Scheme, but the relevant provisions were to come into force on such date as the Home Secretary might determine. The Home Secretary did not bring these provisions into force at all, but instead purported to introduce under prerogative powers a scheme substantially different from that approved by Parliament. The House of Lords, by a majority, said he was acting unlawfully in so doing.

• The European Communities Act 1972 gives Ministers very wide-ranging powers to make Orders, subject to minimal Parliamentary scrutiny, for the purpose of complying with any obligations arising from membership of the European Community.

• European Communities Act 1972 s.2(2)

... Her Majesty may by Order in Council, and any designated Minister or department may by regulations, make provision (a) for the purpose of implementing any Community obligation of the United Kingdom ...

• This section authorises the making of Orders in Council and Departmental regulations with statutory force, to give effect to EC directives and decisions as necessary. Such Orders and regulations can amend or repeal existing law, and take precedence over all other statutes whether enacted before or after. However, the Act expressly excludes from the scope of this power any regulations imposing taxation, having retroactive effect, creating serious crimes or further delegating legislative powers.

• R v Secretary of State ex p Orange (2000) Times 15/11/00, Sullivan J

The Telecommunications Act 1984 limited the circumstances in which licences could be amended, but the Minister used his general powers under s.2(2) of the European Communities Act 1972 to repeal parts of the 1984 Act by Order in Council. The judge said this was unlawful: where delegated powers are to be used to repeal or amend primary legislation, the Minister must tell Parliament in clear terms what primary legislation is affected.

• Thoburn v Sunderland CC [2002] 4 All ER 156, DC

A greengrocer D was convicted of a weights and measures offence, the relevant amendment to the Weights and Measures Act 1985 having been made by Order in Council under the European Communities Act 1972. Laws LJ rejected the argument that Henry VIII clauses cannot be used to make substantial changes to existing primary legislation: whether or not such changes were desirable was another matter, but in this case the Order giving effect to a European Directive was clearly within the powers conferred of s.2(2) of the 1972 Act.