Delegated legislation is defined as the act of transferring powers and functions through the Acts of parliament to other organisations such as ministries, local governments, public corporations (PHCN, Water Board) etc. Laws made by these bodies are referred to as bye – laws. Parliament finds it more convenient to lay down the general principles of laws and then leave the administrative and technical aspects to these other bodies, whose powers are delegated by the parliament. Delegated legislation is a special feature of modern government.
TYPES OF DELEGATED LEGISLATION
- Bye – Laws: These are laws made by local governments, public corporations, ministries. These powers are conferred on them through the Acts of Parliament.
- Orders in Council: In Britain, for example these orders or proclamations are for the Queen or King to give orders on some matters having the backing of the law These orders are mostly ratified by the privy Council (highest Court of Appeal in the United Kingdom) which is a body that advises the crown on political and governmental issues of the state.
- Provisional Orders: A minister could be given the power to run an undertaking, e.g. a transport corporation, but at this stage, it is provisional or temporary until confirmed by parliament.
- Special procedure orders: The minister makes the order and presents it to the parliament. The order comes into force after 14 days, unless petitions of a general objection have been lodged against it.
- Statutory instrument: Ministerial regulation is governed by Statutory Instrument Acts. These instruments are mainly directed to rules applicable to the country. For example, no-smoking in public institutions (schools, health institutions etc as directed by the ministry of health).
- Rules of professional bodies: There are rules and ethics guiding the activities of every member of a professional body e.g. NMA and NBA. This rules are constitutionally legal and must be adhered to.
- Warrants: For example, search and bench warrants. This is legal document that is signed by a Judge and gives the Police authority to do something e.g. a warrant to search or arrest someone.
THE IMPORTANCE OR MERITS OF DELEGATED LEGISLATION TO MODERN GOVERNMENTS
- Reduction of work load: Delegated legislation has succeeded in reducing the pressure of work on parliament.
- Useful for emergencies: In case of an external attack, the executive can take quick decisions.
- It saves time: Delegated legislation saves parliament enough time, whose legislative machinery could break down if it were to enact all laws.
- Technical languages: It is useful where technical languages are involved in government policies.
- Efficiency: Delegated legislation makes for efficiency and precision.
- Experiment: It is useful where experiment is desired. Most local governments have achieved something realistic through this experiment.
- Adjusting to changing situation: With this development modern governments can adjust to changing situation and easily take care of contingencies.
REASONS WHY DELEGATED LEGISLATION IS OFTEN CRITICISED OR DEMERITS OF DELEGATED LEGISLATION
- It violates the principle of the rule of law: Delegated legislation violates the principle of the rule of law which lays emphasis on the freedom of citizens.
- Lack of publicity: The numerous bye-laws, rules and regulations are not known to the common citizen because they are not well publicised.
- It violates the principle of separation of powers: Delegated legislation also violates the principle of separation of powers and the sovereignty of the legislature.
- The executive: The executive may tend to grow more powerful than the legislature.
- Too many law – making bodies: Delegated legislation involves too many law-making bodies. The power of the judiciary to review the activities of the legislature is made difficult.
- Abuse of power: This can manifest itself. The departments involved in this exercise can easily abuse such powers delegated to them.
- It is undemocratic: Most of the laws made by some of these bodies are draconian, and undemocratic and do not have the support of the people.
- The executive could become dictatorial: The executive arm seems to have too much powers at its disposal. It could make it become dictatorial.
- It violates the principle of parliamentary supremacy: This is because other bodies or organisations are equally involved in performing legislative functions,
- Legislative functions could be eroded: Laws made by these bodies may have a negative effect on legislative functions of parliament.
- It may not be acceptable: Most of the laws and rules enacted, may not be widely accepted because enough consultation was not made before their formulation and implementation.
- Parliamentary Control: The laws made by some of these bodies and their activities may lack effective parliamentary control.
CONTROL OF DELEGATED LEGISLATION
There are various methods in which the exercise of delegated legislation is controlled and these methods are:
- Parliamentary control: The parliament has the power to control the bills of these various bodies before such bills become laws. It can equally reject laws made by these bodies. Infact there are standing committees in parliament that examine most of the statutory instruments of these bodies laid before the parliament.
- Judicial Control: The law courts exercise control overrules and regulations made by these organizations. This is to make sure that these rules are made according to the provisions of the constitution. Similarly, the judiciary can declare unconstitutional some of the laws made by these organizations.
- Ministerial control: Activities of public corporations are under the control of the minister. Most of the bye – laws, rules and regulations made always receive his attention. Also, the minister has the power to dissolve the board of directors of most of these corporations.
- Auditing or financial control: The finances of most public corporations are audited to enhance efficient financial management. The government may send a team of auditors to perform this function.
- Public Opinion: The opinions of the public towards most of these organisations could be negative or positive. For example, the opinion of the public towards PHCN is negative. Therefore, with this negative impression of the public, government can respond positively through the restructuring of the entire corporation. Equally, people are encouraged to let their grievances or problems known to the appropriate bodies e.g. OMBUSDMAN (Public complaints commission) or any other body with similar expression.
- Petitions: This is also a way of controlling delegated legislation, people can write petitions against an organisation on issues affecting them e.g. corruption. Also, people are encouraged to write letters to some government agencies about: events unfolding itself in some of these bodies or organisations.
- Accountability of ministers: Ministers are in most cases summoned in parliament to account for the rules and regulations, bye-laws made in their various ministries.
- Finance: Most of these bodies or organizations depend to a large extent on government for allocations to meet their running cost. Government may withhold allocation to any of these organisations, as a way of checking their activities.
- The Press: The press can act as a control of delegated legislation through their criticisms over rules and regulations governing the activities of these organisations. Some of these rules are antagonistic to the rights of the citizens and the operation of the rule of law.
- Unnecessary Duplication: It will help to prevent unnecessary duplication or contradiction of laws, rules and regulations.
- Obnoxious Law: The control of delegated legislation will help to safeguard citizen’s liberties from obnoxious laws.
- Accountability: It will make officials accountable for their actions.
- Autocracy: It will help to prevent bodies with powers of delegated legislation from being autocratic.
- Usurpation of power: Control of delegated legislation will help to prevent undue usurpation of the powers of legislature.