Delegated Legislation: Types and Control

 

Delegated Legislation: Types and Control


Delegated legislation may also be limited by Parliament prescribing rule making standards for the delegate of powers or by imposing Procedural standards on the administrative process, which a delegate of power or authority is obliged to observe.

Ideally, lawmaking is the exclusive responsibility of the legislature.

However, due to several reasons, this function may be performed by other organs of government, particularly the executive.

This process, which is borne out of expediency or necessity, is known as delegated legislation.

In this post, the concept will be exhaustively discussed and explanations provided why it has become imperative in modern government.

 

Table of Content

By the end of this post, you will be able to:

1. Define the concept and types of delegated legislation

2. Explain the reasons for the transfer of power to make laws to another organ of government

3. Argue for and against the practice of delegated legislation

4.  Understand how to safeguard against the abuse of delegated legislative powers

 

The Concept of Delegated Legislation

Delegated legislation is a system whereby Acts of Parliament delegate legislative powers to government Ministries, Departments and Agencies (MDAs), Local Government Authorities (LGAs) and public corporations.

Delegated legislation may also be limited by Parliament prescribing rule making standards for the delegate of powers or by imposing Procedural standards on the administrative process, which a delegate of power or authority is obliged to observe.

The legislative function is expected to be performed by the legislature in line with the stipulations of the constitution. But, the custom of delegating the legislative function to other bodies or institutions other than the parliament has, for many reasons become imperative.

Thus, delegated legislation are laws made by bodies other than the legislature and they include bye-laws and regulations made by ministers, commissioners, etc.

They form part of Nigeria legislation.

The Acts of Parliament in most countries usually lay down general guidelines to guide ministers and other bodies’ authority to make rules, orders, and regulations.

In other words, the right to legislate in detailed matters, within the limits prescribed by the law has been given by Acts to other bodies such as companies and local government. Similarly, powers of issuing detailed orders, rules and regulations are given to government departments and to the public corporations.

Aside from Britain where it originated, delegated legislation is now a common feature in every modern system of government. This is because the volume of legislation required nowadays is so great that parliament finds it impossible to do all the detailed work involved in lawmaking.

Therefore, Parliament finds it more convenient to lay down the general or broad principles of laws and allowing technical and administrative details to be carried out by extra- legislative bodies.

Thus, delegated legislation can be described as a system whereby non-legislative bodies are authorized by Acts of Parliament to make rules, orders, and regulations (which are laws) as directed by such Acts and having legal backing.

These rules, orders, and regulations made by the executive are referred to as ‘Statutory Instruments’ to distinguish them from Acts of Parliament.

Read On: The Law-Making Process


Types of Delegated Legislation

Delegated legislation has taken various forms in the modern system of government.

We shall examine three broad categories of delegated legislation, as practiced in the United Kingdom.

Order-in-Council

These are the orders made by the Privy Council. The Sovereign-the Queen- usually presides over the Privy Council, or in her absence, the Lord President of the Council.

The Privy Council includes all Cabinet ministers as confidential advisers of the Crown.

It meets as the situation arises to carry out formal acts of state such as the admission of a minister into office; and particularly to transact business like the issuing of proclamations and the submission of Order-in-Council to the Queen, after whose assent the Order is confirmed by the signature of the Clerk of the Privy Council.

Statutory Instruments (by Ministers)

These are the orders, rules and regulations emanating from ministers.

These statutory instruments came into use by the Statutory Instruments Act 1946, and they are of three types:

Provisional Orders

These are the Orders conferred mostly upon government departments. When a minister is authorized to make a provisional order the normal procedure is for the prompters to apply to the appropriate government department concerned.

The minister as the head of the government department shall consider any objection to the application, which may be made by any person affected. The person concerned shall cause a local inquiry to be held, of which notice shall be given in such a manner as the

Minister may direct and at which all persons interested shall be permitted to attend and make objections.

After the inquiry, if the minister is satisfied that there is a genuine reason for the cause to be laid before the parliament, the order is then scheduled to a Provisional Orders Confirmation Bill which is then introduced to the Parliament by the appropriate minister as a Public Bill. The order will not take effect until it has been confirmed by

the Parliament.

Statutory Instruments (Departmental Orders)

These are rules, orders and regulations issued by government departments under statutory powers. In Great Britain, for example, these types of statutory instruments are usually made in accordance with the Statutory Instrument Act of 1946.

This Act provides that all delegate legislation should be known as Statutory Instruments.

Special Orders

These are orders usually presented or laid in draft before the House of Lords in Britain and where an affirmative resolution is required before the Orders or any part of it can become effective. 

Such ‘Special Orders’ are now included in Statutory Instruments Act 1946 in Britain, but it should be noted that its definition here is expansive since it embraces what was formerly known as rules regulations and orders.

Before ‘Special Order’ could be issued a notice of the proposal must be made, objections if any considered, and if the objections are not withdrawn, a local inquiry is instituted.

Statutory Orders (Special Procedure)

These are orders made through special parliamentary procedure. The parliament is empowered to entertain petitions against these orders but it can also amend or annul or permit such orders to take effect.

 

Arguments for and against Delegated Legislation

 

Arguments for Delegated Legislation

1.  Parliament finds it impossible to do all detailed work involved in lawmaking. Therefore, it is more convenient to lay down the guidelines that allow technical and administrative details to be carried out by extra- legislative bodies.

2. Delegated legislation is valuable because it does not only make bills easy to draft but also it makes an act of parliament more flexible and capable of being adapted to changing condition or circumstances without necessarily making regular recourse to parliament when the need for prompt action arises.

Without the practice of delegated legislation, matters of urgency would have been delayed until such a time that the Act of Parliament would have been amended, or a new one enacted.

3. The method of delegated legislation can also be considered as unavoidable because of the great deal and scale of legislations, which are necessary in modern states. It is, therefore, more advantageous for the parliament to devote itself to the consideration of essential of principles of legislation rather than involving itself in the detail of parliamentary legislation that could be better handled by functionaries of the executive, especially the professional cadre in the civil service.

 

Arguments against Delegated Legislation

1. Although in theory, the laws guiding delegated power require parliament to exercise some forms of control over the rules, orders and regulations made by the executive, the practice violates the essential principles of the rule of law the separation of powers- in the sense that the citizens are not subject only to the laws made by the regularly constituted legislature but also to the dictates and discretion of the executive.

The rule of law actually implies that laws are made by a body of representatives chosen by the people and not to lie at the whims and caprice of the executive arm.

2. Delegated legislation has also been viewed with inherent dangers of promoting executive tyranny because of a situation whereby the executive combines law-making functions with its primary responsibility of implementation of policies.

It was this fear, which made Montesquieu in his theory of separations of powers to warn about the consequences of combining different powers of government in a single person or body of persons.

 

Control of Delegated Legislation

Although the practice of delegated legislation has its advantages, some steps are usually put in place by most governments to guide against its possible abuse. 

First, the legislature can control delegated legislation in several ways, though the executive may circumvent or abuse them.

Second, the judicial can control delegated legislation. Based on the theory of separation of powers, the function of the judicial arm of government is to interpret and apply the law to individual cases bought before it.

Nevertheless, the judges possess power over delegated legislation. 

The specific power of the judiciary over delegated legislation is the power to determine whether any particular delegated legislation has the force of power.

In other words, judges are expected to determine whether such subordinate legislation has been made in accordance with the Parent Act that delegates such power. If such legislation has been legally made, its validity cannot be questioned in the law courts.

But if on the other hand, it breaches the Parent Act the court has the power to declare such rule, order or regulation null and void, i.e. it is beyond the powers of the Executive to make, and therefore illegal.

Read On: What are the functions of legislative branch?

Conclusion on Delegated Legislation: Types and Control

Although lawmaking is constitutionally assigned, and usually carried out by the legislature; delegated legislation has become an accepted practice in most countries due to the volume of work before the legislature as well as the technical nature of some legislations.

While the arguments for this practice appears convincing, the challenge is how to ensure that what has been accepted as an expedient is not used as a ploy to take away from the elected representatives of the people the critical business of lawmaking.

In this article, our discussions have focused on delegated legislation. The practice of delegating legislative powers to government ministries, departments, local government authorities and public corporations has become imperative at present.

Delegated legislation makes law-making more detailed, flexible and capable of being adapted to changing condition or circumstances, even though it has inherent dangers of promoting executive tyranny.

As a result, steps are usually put in place by most governments to guide against its possible abuse.

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