Advantages and Disadvantages of Delegated Legislation: Delegated legislation is created when a parliamentary body gives express consent to non-parliamentary entities to make laws. Delegated legislation, to put it another way, is when the legislature transfers some of its legislative authority to a body other than the parliament.
The goal is to provide these government employees the ability to successfully legislation on topics that are connected to their areas of responsibility. Certain unelected individuals are explicitly granted the power to enact these laws and regulations by parliament. Delegated legislation is, in fact, just as binding as legislation passed by the legislature.
Examples of delegated legislation
Examples of orders in council, statutory instruments, and delegated legislation enacted by local government. Laws and ordinances that ministers have enacted with regard to their own ministries.
Meaning of delegated legislation
According to the University of Western Australia, Delegated (or Subordinate or Subsidiary) Legislation refers to those laws made by persons or bodies to whom parliament has delegated law-making authority. There are many reasons behind delegated legislation. Some of the rationale for delegated legislation has been discussed in my article on the “the Reasons for Delegated legislation“. I strongly advise that you read that article first, to understand why many scholars are supporting the idea of delegated legislation in their articles.
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Advantages (merits) of Delegated Legislation
The benefits of delegated legislation make it an essential component of the legislative process. The importance of delegated legislation is such that the modern state might not be able to function properly without it. Due to this, all nations, including Nigeria, Kenya, Botswana, Togo, South Africa, India, Pakistan, Sierra Leone, Liberia, and the Gambia, have some type of delegated law.
The benefits of delegated legislation include the following.
1. Time-saving for the legislature: The government should be worried about a lot of excessive activity. The power must be transferred to the executive branch in order for the legislative to handle the complexity and volume. This is a result of a lack of time or capacity to create regulations through law. Delegated legislation should thus be created in order to avoid becoming bogged down in the burden of specifics.
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2. Allows for flexibility: Statutes have imposed rigidity on administration, while administrative law can be more flexible in response to changing conditions. As a result, it will be helpful in administrative branches that are subject to sporadic changes and where daily technological advancements take place.
3. Managing Emergencies: It should be easier for the administrative agencies to handle any unforeseen circumstances if they are given the necessary discretion. Since the legislature was unable to plan ahead or provide funds for everyone, such scenarios may arise as a result of the implementation of legislation.
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4. Consultations with Affected Parties: Prior consultation identifying the interests that should be impacted is crucial for legislation to be effective. This is so that entrenched interests and the government may meet while rules are being written, which sometimes happens and sometimes doesn’t. This may happen, and as a result, the agreement would be subject to voluntary compliance.
5. The Typical Lawmaker: It is crucial to highlight that an average lawmaker passes the measure in its basic form and leaves the intricacies to the executive branch since this legislator is not as familiar with the challenges of current legislation.
6. Science and technology’s impact: The influence of science and technology has led to an expansion of the state’s capabilities. As a result, the legislature now has a lot more authority.
The executive now has the authority to make laws since the legislative branch is unable to handle the influx of new powers.
Disadvantages (demerits) of delegated legislation
Below are some of the disadvantages of delegated legislation:
1. It is contrary to the doctrine of separation of powers: This is one of the major disadvantages of delegated legislation. Most of the scholarly articles in the internet provides that delegated legislation actually contradicts the doctrine of separation of powers. The reason is because administrative authorities use the power of delegated legislation to fill in the details of statutes which have been passed in primary, broad or skeletal form by parliament. These so called details or delegated legislations may affect the rights of people. Scholars also argue that delegated legislation is an exception to the doctrine of separation of powers, and that it is unacceptable that persons other than parliament should make laws.
It is not proper that people who are not elected should be allowed to make laws. It is desirable that the details be filled in by parliament, that is, the elected representative of the people who can be called to account or sanctioned by defeat at an election for enacting an unfavorable law. Delegated legislation is contrary to the doctrine of separation of powers and it is a usurpation of the powers of the parliament.
2. It is an usurpation of the powers of the parliament: Another disadvantage and argument against delegated legislation is the fact that affects the constitutional function of the legislature. Delegated legislation is an usurpation of the law making powers of the parliament, and it amounts to reduction of the supremacy of parliament to make law.
3. It is undemocratic and prone to abuse: From the definitions of delegated legislation I have given at the inception of this article, you will agree with the argument that delegated legislation is truly prone to abuse. It is undemocratic for persons who are not elected as parliamentarians and three lacking legislative mandate to make laws.
It is also submitted that most times, administrative law makers do not have parliamentary experience and are likely to abuse delegated legislation. This is also one of the major disadvantages delegated legislation.
4. It is a violation of the rule of law: Rule of law can simply be defined as the Supremacy of the law and authority of the state over everybody in a political system. What did means is that, at all time, the law is the supreme and everyone in a political system must obey the law. Now, delegated legislation is a violation of the rule of law because, the procedure for making delegated legislations is not always as stipulated by the law. Administrative authorities that make delegated legislation usually make use of faster methods during law making. Thus, the principle of rule of law is violated.
It has be submitted by many scholars that this is a fundamental defect and a violation of the rule of law. For this reason, delegated legislation is not advised.
5. Control of delegated legislation is inadequate: Legislative and judicial control over administrative legislation are inadequate. Parliament has no time, opportunity nor the special expertise, that may be required to keep close surveillance and make needed objections to administrative legislations. Delegated legislations made under Acts of Parliament ought to be laid before the relevant parliament for approval, as a safeguard and regulatory measure against abuse of power by administrative law makers.
However, the requirement of laying before the House is rarely enforced by parliaments. In other words, parliamentary control of delegated legislation is often insufficient. Also affected persons may not invoke judicial intervention or review for may reasons which may include the cost of litigation, ignorance, indifference, fear of persuasion, intimidation and even the effect of ouster clauses, saving the validity of administrative actions already taken and so forth.
6. It encourages Arbitrariness and Dictatorship: The possession of the power to make the law and implement the law, more often than not, makes the executive or administrative authority too powerful, bold, over confident, insolent, arrogant and more likely to be arbitrary and dictatorial in his disposition and actions.
7. There is total lack of or insufficient consultation: Commonly, there is total lack or insufficient consultation of stake holders before delegated legislations are made. Furthermore, there is no general provision of law for the consultation of concerned interest before the relevant subordinate authorities to whom power has been delegated should go ahead to make the delegated legislation.
8. Inadequate publicity of delegated legislation: Another disadvantage of delegated legislation is that, there is usually no general provision of law, making it a mandatory requirement that an administrative lawmaker should embark on adequate or subsequent publicity of delegated legislation to bring it to the notice of the people. As a result many people do not know of the existence of such laws, and may breach such laws without intending to do so.
This is obviously repugnant to natural justice and good conscience where ignorance of the law is not an excuse. It is undoubtedly one of the major disadvantages of delegated legislation. It should be noted, however, that in some countries, before any delegated legislation will take effect, it must be made public according to the law of that country. So this this disadvantage does not apply in some countries.
9. Inadequate consideration of the impact of delegated legislation: Delegated legislation is also criticized by many scholars because amendment are frequently made by administrative authorities without reference to the implication of laws on the lives and activities of the section of the public which may be affected, by these laws which are often made without any formality.
The reason for this is because administrative authorities usually have wide discretion to decide what the content of a delegated legislation should be. It is indeed one of the disadvantages of delegated legislation.
10. Administrative lawmakers have too much power and discretion: This is another disadvantage of delegated legislation that really made may people dislike the the principle. Without any doubt, delegated legislations often confer too much powers and discretion on the executive and administrative lawmakers at the expense of the other arms of government, and to the detriment of the people. The administrative lawmaker has wide discretionary powers. The Delegation of legislative power to ministers, head of departments and agencies is often done in phrases such as “if the minister is satisfied“, “in his opinion“, “if it is desirable“. These phrases confer too much power on the delegate to make laws in his absolute discretion and to take action or not to take action.
This is unfortunate and undesirable in a modern society, where it is desired that the rule of law should prevail. The fundamental rights and liberties of the individual that make up society should not be lightly toyed with except in accordance with the due process of law laid down by the constitution.
Delegates of powers, including the subordinate lawmaker could become an unruly horse in the absence of a vigilant, adequate and responsive parliament putting in place the necessary legislative prescription of standard and procedure to guide the administrative law maker.
11. Emergency regulation often infringe civil liberty: Lastly on the disadvantages of delegated legislation is the fact that delegated legislation sometimes infringe the rights of citizens, especially during emergency periods.
Emergency regulations which are usually made in the form of delegated legislation, pursuant to an emergency power statute, often infringe the hard won civil liberties of the people. For this reason people generally frown at delegated legislation, especially when it is in form of emergency regulations, because the precious civil liberties of the people should not be toyed with at the discretion and whims of an administrative lawmaker.
The administration will have a legislative agenda that should keep the Parliament busy during its limited time in session. As a result, the Parliament won’t have enough time to carefully review the complicated legislation and technical norms being discussed. Perhaps the benefits and drawbacks discussed here might help people realize the importance or lack thereof of delegated legislation. It could or might not be a big deal for certain people, but everyone should be worried about it.
The benefits of delegated legislation have made it appealing in the complicated modern state. To minimize its obvious drawbacks, however, procedures must always be made to regulate delegated legislation.
Edeh Samuel Chukwuemeka, ACMC, is a lawyer and a certified mediator/conciliator in Nigeria. He is also a developer with knowledge in various programming languages. Samuel is determined to leverage his skills in technology, SEO, and legal practice to revolutionize the legal profession worldwide by creating web and mobile applications that simplify legal research. Sam is also passionate about educating and providing valuable information to people.