Parliamentary control over delegated legislation should be a living continuity as a constitutional necessity. Discuss.
1. Introduction:
It is surprising that The Andorran People, with full liberty and independence, and in the exercise of their own sovereignty. Conscious of the need to conform the institutional structure of Andorra to the new circumstances brought about by the evolution of the geographical, historical and socio-cultural environment in which it is situated, as well as of the need to regulate the relations which the institutions dating back to the Parentages, Shall have within this new legal framework.
Eager to use every Endeavour to promote values such as liberty, justice, democracy and social progress, and to keep and strengthen the harmonious relations of Andorra with the rest of the world, and especially with the neighboring countries, on the basis of mutual respect, co-existence and peace.
It is well known that not all legislation is made by Parliament itself. Traditionally, legislation is divided between primary legislation enacted by Parliament, delegated legislation promulgated by the executive. While primary legislation sets out matters of policy and substance, the implementation and detail is delegated to the executive. It is the detail and implementation of the primary legislation that impacts on daily lives. The cost of a driver’s license, the daily limit for taking of shellfish and what substances can safely be included in your breakfast cereal are allthe subject of delegated legislation rather than Acts of Parliament.
Delegated legislation (also referred to as secondary legislation or subordinate legislation) is law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of that primary legislation. It is law made by a person or body other than the legislature but with the legislature’s authority. ‘Delegated legislation means permitting bodies beneath parliament to pass their own legislation.’(1998,p.23)
2. Delegated Legislation and Executive Legislation:
The former stands for the laws made by the authorities other than the legislature to whom the legislature delegates its legislative power. The latter stands for the laws made by the President and the governor are respectively under article123 and 213 of the constitution. These laws are in the form of ordinances which have the force of law. such ordinances are issued by the respective executive heads and they are required to be ratified by the respective legislature, namely, the parliament and the state legislature,as the case may be, after they meet .such an ordinance ceases to have effect if it is not ratified within six weeks after the assembly of legislature .the source of delegated legislation is always an act of legislature whereas the source of the executive differs.
3. How the delegation of power is executed:
Powers are given by the legislature to administration to enact laws to perform administration functions. The law legislate by the administration with the powers given by the legislature is called delegated legislation. Or we can say that when an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the legislature is called subordinate legislation or delegated legislation. Delegated legislation, also referred to as secondary legislation, is legislation made by a person or body other than Parliament. Parliament, through an Act of Parliament, can permit another person or body to make legislation.” An Act of Parliament creates the framework of a particular law and tends only to contain an outline of the purpose of Act. By Parliament giving authority for legislation to be delegated it.” Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit other enables other persons or bodies to provide more detail to an Act of Parliament to make law and rules through delegated legislation. The legislation created by delegated legislation must be made in accordance with the purposes laid down in the Act. The function of delegated legislation is it allows the Government to amend a law without having to wait for a new Act of Parliament to be passed. Further, delegated legislation can be used to make technical changes to the law, such as altering sanctions under a given statute. Also, by way of an example, a Local Authority have power given to them under certain statutes to allow them to make delegated legislation and to make law which suits their area. Delegated legislation provides a very important role in the making of law as there is more delegated legislation enacted each year than there are Acts of Parliament. In addition, delegated legislation has the same legal standing as the Act of Parliament from which it was created.
4. Commencement:
Several statues contain an ‘appointed day’ clause, which empowers the government to appoint a day for the act to come into force. In such cases, the operation of the act depends on the decision of the government e.g. section 3of the Bombay Rents, hotel and Lodging house rates control act, 1947provides that the act shall come into operation on such date as the state Government may by notification in the official gazette appoint in this behalf. Here the act comes into force when the notification is published in the official gazette. Such a provision is valid for, as Sir Cecil Carr remarks, “the legislature provides the gun and prescribes the target, but leaves to the executive the take of pressing the trigger”(1923,p.345)
5. Punishments to be given:
An amendment of the act, which is a legislative act, but sometimes, this flexibility is necessary to deal with the local conditions. Thus, under the power conferred by the Delhi laws act, 1912, the central government extended the application of the Bombay agricultural debtor’s relief act.1947 to Delhi. The Bombay Act was limited in application to the agriculturists whose annual income was less than Rs. 500 but that limitation was removed by the government.
Prescribing punishments:
In some cases the legislature delegates to the executive the power to take punitive action e.g., under section 37 of the electricity act,1910, the electricity board is empowered to prescribe punishment for breach of the provision of the act subject to the maximum punishment laid down in the act. By section 59(7) of the Deodar Valley Act, 1948, the power to prescribe punishment is delegated to a statutory authority without any maximum limit fixed by the parent act.
According to the Indian Law Institute, this practice is not objectionable, provided two safeguards are adopted: 1) the legislation must determine the maximum punishment which the rulemaking authority may prescribe for breach of regulations; and2).
If such power is delegated to any authority other than the state or central government, the exercise of the power must be subject to the previous sanction or subsequent approval of the state or central government. Framing of rules, a delegation of power to frame rules, bye laws, regulations, etc. is not unconstitutional, provided that the rules, bye laws and regulations are required to be laid before the legislature before they come into force and provide further that the legislature has power to amend, modify or repeal them. Removal of difficulties (Hennery VIII clause) : Power is sometime conferred on the government to modify the provisions of the existing statutes for the purpose of removing difficulties.
6. Flexibility If there:
In some cases, such as changes in rationing scheme or imposition of import duty or control of exchange, public interest requires that the provisions of law should not be made public until the time fixed for its enforcement becomes ripe. Delegated legislation is the only means to achieve this objective. Moreover, in the case of delegated legislation changes take place more conveniently without delay, which is not possible in the case of legislation by the parliament?
In case of emergency which may often arise on account of war, floods, epidemics, economic depression and the like, the Executive must be armed with the rule-making power so that the remedial action may be taken immediately. In a modern state there are many occasions when sudden need of legislative action is felt. To meet such needs delegated legislation is the only convenient or even possible remedy.
7. Dark sides of delegated legislation:
It has been suggested that by having delegated legislation to make and amend laws.
• It lacks democracy as too much delegated legislation is made by unelected people.
• Delegated legislation is subject to less Parliamentary scrutiny than primary legislation. Parliament therefore has a lack of control over delegated legislation and this can lead to inconsistencies in laws. Delegated legislation therefore has the potential to be used in ways which Parliament had not anticipated when it conferred the power through the Act of Parliament.
• Delegated legislation is the lack of publicity surrounding it. When law is made by statutory instrument the public are not normally notified of it whereas with Acts of Parliament, on the other hand, they are widely publicized.
8. Reason for having delegated legislation:
Delegated legislation is necessary for a number of reasons: parliament does not have time to contemplate and debate every small detail of complex regulations, as it only has a limited amount of time to pass legislation, delegating legislation will allow however thoroughly debated regulations to pass through as well as saving parliamentary time. Delegating legislation allows law to be made more quickly than parliament, which is vital for times of emergency. Parliament takes longer as it does not sit all the time and its procedures is generally quite slow and complex due to the several stages each bill has to pass through. Delegated legislation can also be amended or revoked relatively easily, so that the law can be kept up to date and so that the law can meet future needs that arise such as areas concerning welfare benefits, illustrating a great deal of flexibility in the system. Otherwise statutes can only be amended or revoked by another complicated and time-consuming statute. MPs do not usually have the technical knowledge/expertise required in for example drawing up laws on controlling technology, ensuring environmental safety, and dealing with different industrial problems or operating complex taxation schemes whereas delegated legislation can use experts who are familiar with the relevant areas. Jacqueline Martin has suggested instead for parliament to debate the main principles thoroughly, but leave the detail to be filled in by those who have expert knowledge of it. Another argument for the need of delegated legislation is that parliament may not always be the best institution to recognize and deal with the needs of local people. As a result local people elect councilors from certain districts and it is their responsibility to pass legislation in the form of by-laws to satisfy local needs.
9. References:
Article 245 and Necessity of Delegation:
The necessity of the legislature’s delegating its powers in favor of the executive is a part of legislative function. It is a constituent element of the legislative power as a whole under Article 245 of the Constitution. Such delegation of power, however, cannot be wide, unanalyzed or unguided
Article 245 of Constitution of India:
Article 245 {Extent of laws made by Parliament and by the Legislatures of States} Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.
10. Conclusion:
It must necessarily delegate the working out of details to the executive or any other agency. But there is a danger inherent in such a process of delegation. An overburdened Legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may not set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself any control over subordinate legislation. This self effacement of legislative power in favor of another agency either in whole or in part is beyond the permissible limits of delegation. It is for a Court to hold on a fair, generous and liberal construction of an impugned statute whether the Legislature exceeded such limits. But the said liberal construction should not be carried by the Courts to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on executive authorities.
10. Bibliography:
1. “Delegated Legislation”. Retrieved 2007-01-28.
2. <href=”#Propertyrights”>”Delegated aditional Glossary”. Retrieved 2007-01-28.
Thrainn Eggertsson (1990). Law, Legislation and institutions. Cambridge, UK: Cambridge University Press. ISBN 0-521-34891-9.
3. Dean Lueck (2008). “legislation law, economics and,” The New Palgrave Dictionary of Economics, 2nd Editio. Abstract.
4. Klein, Daniel B. and John Robinson. “Delegation: A Bundle of Rights? Prologue to the Symposium.” Econ Journal Watch 8(3): 193-204, September 2011.[1]
5. Mohammad Amin & Jamal Haidar, 2012. “The cost on to legislation right: does legal origin matter?,” Empirical Economics, Springer, vol. 42(3), pages 1035-1050, June
6. Barzel, Yoram (April 1982). “Measurement delegation and executive body of law”. Journal of Law and Economics 25 (1): 27–48. doi:10.1086/467005. ISSN 0022-2186. JSTOR 725223.
7. Douglas Allen, (1991). What are legislation demerits cost? (Research in Law and Economics). Jai Pr. ISBN 0-7623-1115-0.
8. Guerin, K. (2003). Delegation and success: A New Zealand Perspective. Wellington, New Zealand: NZ Treasury
[1] Doctrine dates back at least to the Middle Ages, and is found both in early Christian and Muslim theological concepts.
[2] Shumway v. Shumway, 44 P.2d 247 (Kan. 1935); Lambrecht v. Lee, 249 NW 490 (Mich. 1933).
[3] Garrott v. McConnell, 256 SW 14 (Ky. 1923); Kendrick v. Ray, 53 NE 823 (Mass. 1899).