Delegated legislation

The Meaning of Delegated Legislation

Delegated Legislation may be defined as laws, rules and regulations made by other bodies or persons other than the legislature. The legislature delegates part of its law making function to individuals, groups of individuals, ministries, corporation, local governments etc. The complicated nature of government activities have made it difficult for the legislature to take care of all law making responsibilities in the country which is its primary function. Due to this fact, some of the law making responsibilities have to be transferred or delegated to some persons or bodies apart from the legislature.

Delegated legislation has the same legal force and effect as the Act of Parliament under which it is enacted. Simply put, delegated legislation is made up of laws that are created under the authority of Parliament, but not by Parliament itself. The Enabling or Parent Act is what is used to specify the person or group with the power to make more specific laws and the extent of their power.

Forms or Types of Delegated Legislation

The following are the forms or types of delegated legislation:

1. Orders in council:This is the power given to the head of states to make laws. This type of power is delegated to British monarch to make laws. Which includes the power of proclamations?
2. Bye-laws:These are rules and regulations made by local government authorities’ public corporations and other similar bodies for smooth running of the government in the state.
3. Provisional orders:These are laws made by ministers which may be temporally for a while before such laws are confirmed by the parliament .They are laws and rules conferring powers upon individual authorities or other bodies made by a minister as authorized by the acts of parliament to carry out certain assignments.
4. Statutory Instruments:This is also known as ministerial order. They are issued by a minister or commissioner under the authority conferred on him by the legislature.
5. Special procedure orders:The minister makes the order and presents it to the parliament .the order comes into force after fourteen days, unless petitions of a general objection have been lodged against it by members of the public.
6. Warrants:There are two types of warrants namely search and bench warrants. A search warrant can be issued to a senior police officer to search or arrest a suspected person. A bench warrant is issued by high court judges demanding for a person to appear before a court to give evidence.
7. Rules of professional bodies:Professional bodies are expected to make laws to regulate and guide the activities of their members .e.g. NBA, NMA.

EVALUATION

1. Define delegated legislation
2. List and explain six forms of delegated legislation

Control of Delegated Legislation

1. Parliamentary control: Delegated legislation is issued through the Act of Parliament it is therefore necessary for the parliament to control such powers.
2. Judicial or legal or court control: The court can declare any delegated legislation unconstitutional, null and void. This occurs when bodies or individuals armed with such delegated power make orders not backed by the law or outside their jurisdiction.
3. Ministerial control: Bye laws made by ministries, corporations and departments under the jurisdiction of ministers are subject to control by such ministers – either to approve or disapprove.
4. Ministerial accountability or scrutiny: The parliament may exercise its powers to summon the minister for explanation on the use of certain rules, orders or bye-laws in ministries, corporations or departments under their supervision.
5. Financial control: Government auditors can send to those exercising power of delegated legislation to audit their account and to control their financial spending.
6. Public opinion: Informed members of the public can protest against unfavourable or unpopular delegated legislation.
7. Press criticism: The press as the watchdog of the government can expose any wrong doing by those exercising the powers of delegated legislation.
8. Public enquiry: An outcry by the public against a particular existing delegated order or bye-law can instigate a public enquiry to find out about the fact surrounding such, with a view to making appropriate amendment to the satisfaction of the public. Ombudsman is a good instrument in this process.

Advantages and Disadvantages of Delegated Legislation

Advantages of Delegated Legislation

1. Time saving: Delegated legislation saves parliamentarians time and energy in deliberating on minor laws.
2. Suitable for emergency periods: It very useful in solving emergence problems that may face the government.
3. Use of experts In Technical subject: experts are given opportunities to make laws on their different field.
4. It gives room for flexibility: It would create room for flexibility because it can accommodate changes.
5. Allows for experimentation: It will also make for experimentation before laws are enacted and lapses identified can easily be corrected.
6. Conforms to local needs: Delegated legislation will suit local customs and meet the needs of the people and thereby solve their immediate problems.
7. Lessen the pressure on parliament: It would reduce the workload of the parliament because some of their functions are been performed by bodies other than the parliament.
8. It helps to bring government nearer to the people. When powers are transferred to other body other than the parliament it will bring government closer to the people.
9. Simple to understand: Delegated legislations are laws made based on the simple and easy understanding and interpretation of the people which are applicable to their local or immediate situation.

Disadvantages of Delegated Legislation

1. It is prone to abuse: Due to the fact that delegated powers are loosely defined by parent Acts, organizations, departments and individuals are prone to abuse such powers.
2. It is against separation of powers: delegated legislation when viewed with Montesquieu principle of separation of powers runs contrary to it because legislative function is not supposed to be shared with executive arm
3. It is a violation of rule of law: the attributes of delegated legislation violates the rule of law
4. Lack of effective control by the Parliament and courts of law that are supposed to control delegated legislation from misuse of power.
5. Red Tapism: delegated legislation may lead to excessive use of formalities by the officials that will result in delays especially during emergency periods.
6. Makes judicial review difficult: indiscriminate making of laws by many organs makes judicial review difficult.
7. It is undemocratic: it is undemocratic because it encourages those without the people’s mandate to make laws
8. Reduces the supremacy of the parliament in law making because the executive is involved in delegated legislature.
9. Encouragement of dictatorship: the executive arm can become dictatorial as a result of the power vested in it by delegated legislation especially during emergency period.
10. Inadequate publicity: Most of the laws and regulations made through delegated legislation are not known by the citizens due to lack of adequate publicity to enlighten the people for whom the laws are meant.

EVALUATION

1. Why is delegated legislation necessary in modern governments?