Legislation is defined as the process of making laws by competent authorities i.e. the parliament at the federal level and the legislative assemblies at the state level. OR. It can be defined as action of enacting a law with respect to Acts, Bills and resolutions or similar items by Congress, a state legislature or local governing body.
Defined in Section 3 of the Interpretation Act 1967 as any proclamation, rule, regulation, order, notification, resolution, rule of court, by-law or other instrument made under or by virtue of Ordinance, Enactment and having legislative effect.
It’s subject to the approval of the council, which may be given through either the positive procedure or the negative procedure. It is enacted by persons or bodies to whom the power to make the subsidiary legislation is delegated. Such persons or bodies may include presidents, ministers, local government or the Yang di- Pertuan Agong in the case of Malaysia. Like legislation, subsidiary must not contravene its principal or parent act. Otherwise it will be void for being ultra vires. Examples of subsidiary legislation include;-
Rules Regulations and By-laws There are various ways that can be used to control subsidiary legislation: * Consultation * Publicity * Parliamentary control * Judicial review The advantage of subsidiary legislation becomes apparent in the event of a sudden emergency caused by political, economic or natural calamities when quick measures are required to meet the contingency.
DELEGATED LEGISLATION It has become a common practice for Acts of Parliaments to confer on persons or bodies power to make rules and regulations for specified purposes. Acts which confer such powers are called Parent or Enabling Acts, and this process or rules made under the authority of Acts are known as Delegated legislation. An Act of Parliament creates the framework of a particular law and tends only to contain an outline of the purpose of the Act.
By parliament giving authority for legislation to be delegated, it enables other persons or bodies to provide more detail to an Act of parliament. Parliament thereby through primary legislation (i.e. an Act of Parliament) permits others to make law and rules through delegated legislation. The legislation created by delegated legislation must be in accordance with the purposes laid down in the Act. Function or reasons of delegation are:
* It is used to make technical changes to the law, such as alternating sanctions under a give statute. E.g. the Insurance Companies Act 1982. * Allows the government to amend a law without having to wait for a new act of parliament to be passed.
* Also by way of an example, a Local Authority has power given to them under certain statutes to allow them to make delegated legislation and to make law which suits the area. * Provides a very important role in the making of law as there is more delegation enacted each year than there are Acts of Parliament.
TYPES OF DELEGATED LEGISLATION Although the sovereignty of parliament necessarily implies total freedom to create delegated legislation by whatever form it chooses in practice there are limited number of types of delegated legislation. The three main types of delegated legislation include:
1. Statutory instruments 2. By-laws 3. Order in council
1. STATUTORY INSTRUMENTS Also referred to as secondary delegated or subordinates legislation. Once bills have progressed through all their stages they become Acts of Parliament. The Acts of Parliament often confers powers on ministers to make more detailed orders, rules or regulations by means of statutory instruments. Statutory instruments are just as much a part of the law of the land as an Act of Parliament.
The courts can question whether a minister, when issuing a Statutory Instruments, is using he or she has actually been given by the Parental Act but cannot question the validity of the Statutory instruments. The Parent Act gives the department permission as well as guidance about how the new piece of legislation is to be written and processed. Statutory instruments make majority of delegated legislation that is made. Around 3000 statutory instruments are issued each year.
Drafting of Statutory Instruments Statutory instruments are normally drafted by the legal department of the minister concerned, often following consultations with interested bodies and parties whilst the SI is in draft. They are then “made” in the name of the person (usually a Secretary of State or Minister) authorized by the Parent Act. Each is given a number in the SI series, which runs from number 1 each calendar year, and is quoted in the form SI 2005/1234.
There are about three and a half thousand Sis to several hundreds of pages. For example in the UK, some SIs applies to the whole of the UK, some of the individual countries only. SIs can also be issued in draft requiring the approval of both Houses of Parliament. These do not have a number until this approval is given. Explanatory notes
All general Statutory Instruments have explanatory notes which explain their scope and purpose. For instance the explanatory note for the Gaming Order simply reads, “This Order increases the monetary limits in the Gaming Act 1968 for the prizes, stakes and other matters mentioned…..”.
The Explanatory note has no legal force; a Statutory instrument legitimacy rests on what is stated in the originating Act of Parliament where the power to make secondary legislation is granted (the citation clause). Explanatory Memorandum
All Statutory Instruments that are subject to parliamentary procedure must now be accompanied by a short document, which explains in plain English what the Statutory Instrument does and why. This document is known as the Explanatory Memorandum.
The Explanatory Memorandum should also include consideration of the costs of the measure and the outcome of the public consultation exercise although to do this it may simply refer to a Regulatory Impact Assessment which should be available to the public.
2) BY-LAWS By-laws can be made by Local Authorities to deal with matters within their particular locality and are usually created when there is no legislation that deals with an issue that concerns people in a local area. By-laws can be annulled by the Home Office; however this is unlikely since they are mostly based on Home Office.
Although they are subject to no direct parliamentary control, they will not take effect unless approved by the relevant minister. By-laws may also be quashed on the grounds that they are ultra vires; inconsistencies with statutes law by which by-laws can never be amend.
An example of a by-law quashed for uncertainty was in Staden v. Tarjanyi 1980, where a by-law making it illegal to fly a glider "in the pleasure ground" was held uncertain because it was held that it must mean in or over, but for it to mean this, there must be "some lower level below which the glider must not fly. Publication of By-laws
Notice must be given a month before publication in local press, and a copy must be available for public inspection at the local authority offices.
3) ORDERS IN COUNCIL. Orders in Council are made issued ‘by and with the advice of Her Majesty Privy Council’ and are usually classified as secondary legislation (although some can be primary legislation) and are made under powers given in the Parent Act. Orders in Council, passed by the Privy Council, can be held to be ultra vires if passed under statutory authority, but if passed under the Royal Prerogative are de facto valid.
Orders in council can be used by the Government in emergency situations. They can be used for a wide variety of purposes but most frequently when an ordinary Statutory Instrument would be appropriate such as transferring responsibilities between Government departments or where it effects the constitution by extending legislation.
Orders in Council were also used to transfer powers from Ministers of the UK government to those of the devolved assemble. Examples of these are the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc) Order 2006 SI 2006/304 and the Draft Welsh Ministers (Transfer of Functions) Order 2008.
Other types of delegated legislation include:
* Court rule committees- rules made by the rules committee to govern procedure in particulars courts. * Professional regulations- some certain professional bodies have delegated authority under enabling legislation to regulate the conduct of their members. * European regulations – made by the European Commission and law as a result of the European Committees Act 1972. ADVANTAGES AND DISADVANTAGES OF DELEGATED LEGESLATION.
Advantages Though delegated legislation has faced a lot of scrutiny and judgment through both the public and government eye, it has its own number of advantages. Some of the advantages include: a) Saving of parliamentary time. By conferring power to other bodies or persons the Members of Parliament will have ample time to deal with other important issues such as passing of a bill rather than making rules and regulations from an already existing law. b) Allows detail to be added for future needs
By giving authority for a legislation to be delegated, it enables other persons to provide material to an Act of Parliament hence making it easier for a common man to understand what the law is all about. c) Technicalities and expertise
Parliament passes the parent Act and those with technical expertise or necessary knowledge can fill in the details. I.e. Since delegation deals with complex and technical issues, the Members of Parliament confer power to other persons to delegate the law enabling them to have knowledge about the law.
E.g. the Abortion Act
d) Flexibility and speed It is easier to amend than the Parent Act since delegated legislation allows the government to amend a law without having to wait for a new Act of Parliament to be passed or enacted. e) Local knowledge
A Local Authority can make law (by-laws) in accordance with what their locality needs as opposed to having one law across the board which may not suit their particular area. This enables the Local Authority to have knowledge about his/ her area. f) For Emergency
E.g. use of Orders of Council Delegated legislation can be used to cover a situation that Parliament had not anticipated at the time it enacted the piece of legislation, which makes it flexible and very useful to law-making. Disadvantages.
Delegated legislation, called the "The New Despotism" by Lord Hewart in a book of the same name, despite saving time suffers from multitudinous problems:- a) Scrutiny Delegated legislation implies that the Parliament has insufficient time to scrutinize the delegation process thus meaning that the Parliament is not reviewing the legislation properly and presence of inadequate control over delegated legislation. b) Sub –delegation of powers
Sub-delegation occurs when law making power is passed on to civil servants by government ministers. This normally leads to causing complexity and confusion since the law is made by civil servants and are merely rubber stamped by ministers.
c) Lack of democracy It’s an undemocratic process since much delegation of the Parental act is made by unelected people except for the By-laws which are laws made by elected councilors. d) Over use Since there is a large number of statutory instruments per year, delegation process is usually over used meaning its difficult for members of Parliament and the public to keep up with the present law. e) Suffer from obscure wording
Like statutes, delegated legislation may be obscurely worded and difficult to understand. f) Less publicized Delegated legislation is not well publicized in contrast to debates on Bill in parliament thus the public are often unaware of new law which is introduced by statutory instruments.
CONTROL OF DELEGATED LEGISLATION. Since delegation legislation results from transferring law making powers from the legislature to the executive, there needs to be a presence of controls that must be effective to ensure accountability and prevent misuse of power subjected to the respective bodies or persons. There are three main types of control of delegated legislation: 1. General control methods
2. Parliamentary control 3. Judicial control 1. General control methods Usually consists of; * Consultation
Ministers have the benefit of further consultation before regulations are drawn up. Those who make delegated legislation often consult experts in those relevant fields as well as those bodies who are likely to be affected by it. An example of a consultation process could be given under road traffic regulations, where ministers are likely to seek the advice of police, motoring organizations, vehicle manufacturers and local authorities before making the rules.
* Publication All delegated legislation is published and therefore provides an pportunity for public scrutiny. The large volume of delegated legislation makes it difficult for the public to understand what the current law is; also the majority of delegated legislation is made in private in contrast to the public debate of parliament.
People are also unaware of their rights; on what grounds law can be challenged and how to go about doing so making it difficult for public scrutiny. On the other hand many people also lack financial resources to go to court, which means legislation is let unchallenged.
2. Parliamentary control. Control over delegated legislation via parliamentary control may seem to conflict with the need to save parliamentary time, however a responsible parliament must monitor the use of powers it has delegated. To do so it has to use certain methods. These include:- i. Affirmation process
Most statutory instrument must be affirmed before coming into force. Statutory instruments become law in two ways through;
* Negative affirmative resolution- whereby after the statutory instrument is written, it is shown to parliament and if within 40 days there are no objections it immediately becomes a law. But if there are objections then the statutory instrument is debated upon.
* Affirmative resolution process – a statutory instrument may not become law unless specifically approved by parliament. Parliament will put an instruction under the Parent Act, informing that the issue is required to be debated and voted upon before it becomes a law. ii. Scrutiny committee
The scrutiny Committee also known as the Joint Select Committee is responsible for reviewing statutory instruments and drawing the attention of parliament to any delegated legislation which requires special further consideration before the committee stage of the bill. Possible problems that the scrutiny committee could go through that may force them to inform parliament if they: * Go beyond the powers of the enabling Act.
* Reveal an unusual or unexpected use of power * Have been drafted defectively or unclear. The Delegated Power Scrutiny committee reports: * Whether the provisions of any bill inappropriately delegate legislative power.
* Whether the power is subject to an inappropriate degree of parliamentary scrutiny. The Committees also advice the House before the committee stage of the bill.
3) Judicial Control or Judicial review Judicial review is where judges in the Queen¹s Bench Division of the High Court are asked to review the decisions of inferior courts and tribunal, and also of public bodies and officials. It allows the courts to supervise the workings of a very wide range of decision making processes, making sure the process remains fair and provides access to justice, as well as making sure that powers are not abused. The grounds for judicial review are:
* Ultra vires- where legislation goes beyond its power that parliament granted under the enabling Act, whilst the validity of statute can never be challenged by the courts due to parliamentary sovereignty.
* Procedural ultra vires-occurs when procedures under the enabling act have failed to be followed and refers mainly to the situation where a public authority has over stepped its powers.
An example of ultra vires occurred in R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000) a High Court judge ruled that a statutory instrument setting conditions for appraisal and access to higher of pay for teachers was beyond the powers given under the Education Act 1996 as a result the statutory instrument was declared void. This case demonstrated a clear example of where delegated legislation can lead to abuse of powers and why it is necessary to have controls over delegated legislation.
* Substantive ultra vires-the courts are able to intervene to prevent an abuse of power by public authorities. This occurred in the Commissioners of Custom and Excise V Cure and Deely Ltd (1962), where the power of the commissioners to make delegated legislation under the Finance Act 1940 was challenged.
Under this Act the commissioners determined the amount of tax due where a tax return was submitted late however the High Court invalidated this and argued that the commissioners had given themselves powers far beyond what parliament had empowered, there job was to only collect the amount of tax due.
This is another case whether it has been clearly demonstrated without controls many authorities will abuse the powers ultra vires and again demonstrates why it is necessary to have control over delegated legislation. In this demonstration control by the courts has proved to be highly effective.
Conclusion. After having reviewed the process, types, advantages, disadvantages and controls, I have been able to discover that delegation legislation is inevitable and beneficial at the same time. Delegation legislation have its own benefits such as, its time saving, it provides an important role in law making etc.
I have also discovered although Parliament can confer power to other bodies and persons, they (the Parliament) should create time to go over the delegated legislation and not neglect the new rules/ laws created. The executive bodies that are given power to delegate need effective checks and control to be able to carry out their duties of delegation. Since the controls available are large adequately, there is need to improve policy review of draft statutory instruments by the parliament.