Criticisms and Disadvantages of Delegated Legislation: In my last article concerning delegated legislation, I extensively discussed the reasons for the delegation of legislative powers. However, I did not mention any of the problems that are usually associated with delegation of legislative powers. It is actually very important to know the arguments against delegated legislation because it will help you to understand why some scholars still don’t subscribe to the idea of delegating powers of the legislature to any authority or administrative agency.
As it is usually said, everything that has advantages equally has disadvantages. In this article, we will be looking at the disadvantages of delegated legislation. In other words, i will be analyzing some of the arguments against delegated legislation. I enjoin you to read this work painstakingly so that you will be able to grasp all the information contained in it. Before moving to the crux of today’s topic, what does delegated legislation mean?
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.
Okay! Now that you know the meaning and reasons for delegated legislation, let’s quickly look at the disadvantages or arguments against delegated legislation in our modern society.
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Disadvantages 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.
Yeah! Those are the disadvantages of delegated legislation. Basically, they are the reasons why many scholars criticize delegation of the legislature’s power of law making. Nonetheless, i must note that the responsibilities of modern government and administration are multifarious and awesome. For public officers and administrators to perform with despatch and creditably, delegation of powers to the relevant experts in such field may be necessary as occasion demands.
The above criticisms notwithstanding, delegation of powers and delegated legislation are inevitable if the machinery of a modem and effective government and society are not to be over burdened and come to a halt. This is apparently my view on delegated legislation.
I would love to hear from you! What do you think about delegated legislation considering the fact that it has all the disadvantages I have enumerated and explained above? Send your questions and contributions using the comment section below this article.
Edeh Samuel Chukwuemeka ChMC, is a Law Student and a Certified Mediator/Conciliator in Nigeria. He is also a Developer with knowledge in HTML, CSS, JS, PHP and React Native. Samuel is bent on changing the legal profession by building Web and Mobile Apps that will make legal research a lot easier.