Delegated legislation

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 WHAT IS DELEGATED LEGISLATION?

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\Delegated legislation is the name given to legislation or law that is passed otherwise than in an Act of Parliament. Instead, an enabling Act (also known as the parent Act or empowering Act) confers a power to make delegated legislation on a Government Minister or another person or body. Several thousand pieces of legislation are made each year, compared with only a few dozen Acts of parliament aced legislation can be used for a wide variety of purposes, ran in from relatively narrow, technical matters , to filling in the detail of how an Act setting out broad principles will be implemented in practice.

Delegated legislation is a technique to relieve pressure on legislative time so that it can concentrate on principles and formulation of policies. In the Indian context under Article 77 resident has power to make rules for more convenient trans of business of government. India, rules and regulation, orders, notifications by laws form part of delegated legislation.

ADVANTAGES OF DELEGATED LEGISLATION

Parliamentary time is saved on relatively trivial matters. Local knowledge is usually desirable in deciding what local by- laws should be passed. This task, therefore, is given to the local authorities. Delegated legislation is far quicker to introduce than an Act of Parliament. This can be an advantage in instances when emergencies or unforeseen problems require laws to be changed. The detail of the delegated legislation can be dealt with by the appropriate minister, leaving Parliament as a whole more time to focus on the general principles of the enabling Act.

Delegated legislation by its very nature concerns specialist technical and/or local knowledge. So it is an advantage for such specialist provisions to be dealt with by those who have this knowledge rather than by Members of Parliament who generally would not have the required specialist or local knowledge.

Delegated legislation is more flexible than an Act of Parliament. It is far simpler to amend a piece of delegated legislation than to amend an Act of Parliament. 

DISADVANTAGES OF DELEGATED LEGISLATION

The main criticism of delegated legislation is that it takes law making away from the democratically elected  Parliament. Instead, power to make law is given to unelected civil servants and experts working under the supervision of a Government minister.

Accountability issue is the problem that the authority vested in Parliament to make law is delegated away from Parliament, possibly through a number of ‘layers’, for example, to a Government Minister and to a department and then possibly again to a group of experts.

The accountability issue is the problem of adequate scrutiny. The detailed, technical and specific nature of much-delegated legislation means that, on the whole, Members of Parliament do not have the expertise to consider proposed legislation effectively.

The large volume of delegated legislation produces huge number of  statutory instruments each year which means that it is very difficult for Members of Parliament, let alone the general public, to keep up to date with the present law. This is exacerbated by the fact that delegated legislation is made in private.

What should be done to control Delegated legislation?

1.  Parliament should emphasize more on working on committee system on subordinate legislation. It should thoroughly review all details of legated legislation and give their assent only when they are fully satisfied with proposals. In this way parliament can regain its control over executive.
2.  Judicial Review: All contents of delegated legislation should be subjected to judicial scrutiny and it judiciary finals any substantive ultra-Virus, procedural Ultra-Virus.
Substantive Ultra-Vires: When delegation start is itself unconstitutional, for ex. being violative of a Fundamental Right. Sometimes the present statues may be constitutional but rules made these under may suffer from vice of unconstitutionality. Then the rules can be challenged in the court of law.
Procedural Ultra-Vires: When rule making authority does not abide by procedural requirements which the parent law lays down.
3.  Review by Legislature: All aspects of delegated legislation should be reviewed by legislature before implemented by executive. Legislature should also describe the limits-for delegated legislation so that the executive does not misuse the powers for its own selfish ends.
4.  Pre-requisite approval: Before passing delegated legislation, executive has to take permission from legislature on various aspects of delegated legislation. They include both substance as well as procedural asset of delegated legislature.

Committee on Subordinate Legislation (Lok Sabha)

The Committee consists of 15 members nominated by the Speaker. A Minister is not nominated to this Committee. The Committee scrutinizes  and reports to the House whether the powers to make regulations, rules, sub-rules, by-laws etc. conferred by the Constitution or  delegated by Parliament are being properly exercised by the executive within the scope of such delegation.

Committee on Subordinate Legislation of Rajya Sabha

Its function is to scrutinise and ensure whether powers to make rules, regulations, bye-laws, schemes or other statutory instruments conferred by the Constitution or delegated by Parliament have been properly exercised within such conferment or delegation, a Committee called the Committee on Subordinate Legislation has been constituted under Rules 204-206 of the Rules of Procedure and Conduct of Business in Rajya Sabha.