Table Of Contents
- Definition Of Delegated Legislation
- Reasons For Delegated Legislation
- Types Of Delegated Legislation
- Advantages Of Delegated Legislation
- Disadvantages Of Delegated Legislation
- Control Of Delegated Legislation
- Reasons For The Control Of Delegated Legislation
Definition Of Delegated Legislature
Delegated legislation may be defined as laws, rules and regulations made by other bodies or persons other han the legislature but sanctioned by the legislature. The complicated natre and growth of government activities have made it difficult for the legislature to oversea and make all laws in the country which is its primary function.
To facilitate thi law making process, the legislature delegates paryt of its law making function to individuals, groups of individuals, ministries, corporations, local governments, etc.
The laws, rules and regulations made by there extra-parliamentary bodies are what we know as delegated legislation.
Reasons For Delegated Legislation
1. Delegated legislation is used to reduce the work load of the legislature.
2. It is also used to faciulitate the law making process.
3. The technical nature of some legislations makes it possible for the legislatre to pass them to experts in other bodies.
4. Another reason for delegated legislation is as a result of complicated nature
and rowth of governmental activities.
5. Delegated legislation is used in order to avoid rigidity.
6. It is properly used in emergenc period because of its flexibility.
7. Delegated legislation is necesssary in order to bring government and power nearer to the people.
8. It is used to make adjustments to meet unforeseen and contingent matters in a country.
Types Of Delegated Legislation
These are powers delegated to the British King or Queen to issue orders on certain matters which have the force of law. Orders of this nature are also known as perogative orders and are ratified by the Privy Council which is a body that advises the crown on governmental matters. Order-in-concil can also take the form of proclamations which the King or Queen used to proclaim most colonial territories British territories.
These are rules and regulations made by local government authorities or local councils, public corporations and other similar bodies for the smooth runnin of their resonsibilities. These bye-laws hae effects only within the areas of jurisdiction of these authorities that made them.
3. Provisional Orders:
These are orders conferring powers upon individual authorities or bodies made by a minister as authorised by parliamentary acts. These orders are provisional which must be confirmed by the parliament. An example of these orders is the power a minister confers upon a public corporation to carry out a certain project. If the minister is convinced of the viability of the project after carrying out research on the project, will introduce a bill known as the Provisional Order Confirmation Bill to the parliament to seek parliamentary approval. The public corporation can only act when the bill has been approved.
4. Statutory Instruments:
Statutory instruments are also known as Ministerial Orders Or Departmental Orders. The are orders or rules issued by ministers or commissioners under the authority conferred on them by Acts of Parliament.
5. Special Procedure Orders:
These orders are also known as statutory order and they are similar to provisional orders. Like provisional orders, they confer special powers upon local authorities or bodies made by ministers as authorised by parliamentary acts. Unlike provisional orders, special procedure orders are made on strictly limited scope, do not require confirmation bill and when they are presented to the parliament the orders come into force automatically at the end of 14 days in the absence of resolution of their cancellation by any of the houses and petition.
Search warrants by senior police officers to suspected persons and bench warrants by high court judges for a person to appear before the courts to give evidences are parts of delegated legislation.
Arguments For Or Merits Or Advantages Of Delegated Legislation
1. Time Saving:
Through delegated legislation, powers are conferred on certain bodies, organizations and individuals to make certain minor laws while the parliament concentrates on laws of broad terms. This saves the parliamentarians time and energy that could hae been dissipated on such issues.
2. Suitable For Emergency Periods:
Delegated legislation is suitable to meet emergency periods which if the parliament is to wait to make laws to control such emergency situations, things will get out of hand.
3. Use Of Experts In Technical Subject:
By delegating authority to different organizations, department, bodies,etc,to make laws, it makes it possible for different experts to make technical lawson their different fields.
4. It Gives Room For Flexibility:
Unlike laws made in the parliament that are rigid, delegated legislature tend to be flexible in the sense that it is easy to make, amend and repeal.
5. Allows For Experimentation:
Delegated legislation when made newly is experimented in one area and if it proves successful, another area may adopt it.
6. Conforms To Local Needs:
Through delegated legislation, local authorities are empowered to make laws based on their social milieu and local needs.
7. Easy To Understand:
Delegated legislations are made based on the level of understanding of the people of the area the laws will be applied.
8. Lessens The Pressure On Parliament:
Parliamentary work loads are reduced through delegated legislation.
9. It Help To Bring Government Nearer The People:
By empowering local authorities to make local laws, the government seems to move nearer the people and such people are given sense of belonging.
10. It Saves Costs:
Finally delegated legislation save cost in terms of material and human resources and the formalities involved in the passage of bills.
Arguments Against Or Demerit Or Disadvantages Of Delegated Legislation
1. Reduces The Supremacy Of Parliament:
Delegated legislation acts as a usurpation of the function of the legislature by the executive thereby reducing the supremacy of the parliament in law making processes.
2. It Is Prone To Abuse:
The departments, organizations individual etc. are delegated powers by the parliament to makes laws can easily abuse such privilege especially, as such powers are loosely defined by Parent Acts.
3. It Is Against Separation Of Powers:
Delegated legislation runs contrary to Montesquieu’s principle of separation of powers because it tantamounts to sharing of legislative function with the executive arm of government.
4. It Is A Violation Of Rule Of Law:
The indiscriminate formulation of laws by different bodies, frequent amendments of these laws, secrecy in law making etc, are some of the attributes of delegated legislation that violate the principles of rule of law.
5. Makes Judicial Review Difficult:
The indiscriminate making of laws by many organs also make judicial review difficult if not impossible.
6. It Is Undemocratic:
Delegated legislation is an undemocratic act because, it encourage those without people’s mandate to make laws.
7. Concentration Of To Much Powers In The Executive:
By allowing the executive arm of the government to make laws, delegated legislation make it possible for too much powers to be concentrated in the executive at the expense of other arms of the government in the executive at the expense of other arms of the government.
8. It Amounts To Usurpation Of Power:
Delegated legislation tantamounts to usurpation of the legislative function by those arms or departments of the government that are empowered to make laws.
9. Encouragement Of Dictatorship:
The executive arm of government can become dictatorial as a result of the powers rested in it by delegated legislation especially during emergency period.
10. Inadequate Publicity:
Many laws made through delegated legislation are not adequately publicised to the extent that many citizens do not know that such law exist.
11. Red Tapism:
Delegated legislation may lead to excessive use of formalities by the officials that will result in delays especially during emergency periods.
12. Insufficient Consultations:
Sufficient consultations are not carried out with those concerned before laws are made.
13. Violation Of Fundamental Human Rights:
The retrospective effects, inadequate publicity given to delegated legislation, indiscriminate promulgation of laws, etc, are some of the factors that contribute in making delegated legislation to violate citizens’ fundamental human rights.
14. Lack Of Effective Control:
The parliament and the courts tat are supposed to control delegated legislation to avoid misuse of powers, indiscriminate promulgation of laws, etc, do not do so effectively.
Control Of Delegated Legislation Or How To Check The Dangers Inherent In Delegated Legislation
As a result of man’s propensities to acquire power coupled with the fear of misuse of this power, the need to exercise some forms of control of delegated legislation that plays very crucial role in modern government in spite of criticisms levelled against it arose. This control is therefore done in order to forestall the dangers of misuse of powers, preserve law and order, safeguard citizens’ liberties, etc. Some of thee methods of controlling delegated legislation include:
1. Parliamentary Control:
The parliament that delegates part of its constitutional functions to other bodies adopts some measures to check the use of such powers. One of such measures is by ordering that such statutory instruments be laid on the floor of the parliament for forty sitting days, within these forty days, members of the house will have ample opportunity to revoke or approve such legislation. On the other hand, such instrumental order become laws at the expiration of the forty days.
2. Committee On Statutory Instrument:
This is a committee set up by the parliament purposely to examine and scrutinise all statutory instruments laid on the floor of the house. The committee later on reports back to the general house for the modification of such statutory instruments and subsequently approves them to become laws or revoke them as the case may be.
3. Judicial Or Legal Or Court Control:
The law court has the power to declare any delegated legislation invalid, unconstitutional, ultra vires, null and void and of no effects, if the bodies that made such laws did not comply with the stipulated procedure or exceeded powers granted to them, etc.
4. Ministerial Control:
Ministers have the power and authority to approve and control bye laws made in their ministries, companies and corporations under them.
5. Ministerial Accountability:
The regular invitation to ministers by the parliament to account and explain some of the bye-laws, rule and regulations made by their ministries on the floor of the ouse, serves as a serious control of delegated legislation.
6. Financial Control:
The spending activities of bodies with powers of delegated legislation are controlled by the government by sending auditors to audit their accounts. This is done in orde to prevent them from using public funds, in enacting obnoxious laws and laws that will protect them from misuse of public funds.
7. Public Outcry Or Public Opinion:
Public outcry or opinion serves as a serious control on the activities of bodies with power of delegated legislation. Members of the public who feel aggrieved about any particular legislation can formally make their grievances available to public complaint commission for the amendment or repeal of such legislation.
8. Press Criticism:
The press also know as the fourth estate of the realm, through their criticism serves as control to delegated legislation. The press can call for amendment or entire repeal of any legislation they objected to and the bodies with powers of delegated legislation are always conscious of this.
9. Public Enquiry:
A public enquiry may be set up before any act is enacted in order to enable interested bodies and individual raise objection if they have anything about the proposed legislation. Also, the public enquiry can be set upto look into the legislative activities of bodies with powers of delegated legislation.
Reasons For The Control Of Delegated Legislation
1. In order to forestall the dangers of misuse of powers.
2. To preserve law and order in the country.
3. To safeguard citizen’s liberties from obnoxious laws that may be may be made if such delegated legislative powers are not controlled.
4. So that bodies with delegated powers do not usurp the main function of the legislature which is law making by exceeding their limits.
5. To maintain a democratic atmosphere by listening to public outcry when making laws.
6. To prevent bodies with powers of delegated legislation from misusing publi funds in enacting obnoxious laws.
7. To prevent bodies with powers of delegated legislation from enacting laws that will transform them into autocratic bodies.
8. It serves as a way of maintaining official accountability and responsibility to the public.