Whether the Principle of Delegated Legislation Undermines Parliamentary Legislative Power - Assignment Example

English Legal System Delegated legislation Every government has three arms that execute the functions of the government on the citizenship. The functions of the three arms of government are distinct and independent to allow a smooth running of the government. This also avoids a situation whereby the court is faced with the challenge of deciding that arm of the government is more superior as compared to the other. The legislature or parliament is charged with the responsibility of formulating legislation of the country. The executive is charged with governance and formulating and implementing of policies. The judiciary is charged with dispute solving powers and to decide questions touching on matters of law and fact. However, there comes a twist when one is considering delegated legislation. Delegated legislation is not passed by the parliament, although it is vested with legislative passing powers. It is passed by executive arms after getting the powers from the legislature. The legislature will formulate a legislation giving executive authority powers to pass delegated or subsidiary legislation. Something notable is that the legislature must have given power through a statute. The legislative power must have been delegated specifically for something that is pointed out, and the delegation must be through an act of parliament. In the event that the legislative power has not been delegated and the legislative authority comes up with the subsidiary legislation, the legislation will be void as it will be ultra vires, i.e., made without powers. Another factor to be taken into consideration is that the subsidiary legislation must be based on some primary legislation that has been passed by parliament. Therefore, it will not suffice for the executive authority to pass legislation on something that the parliament has not come up with a skeleton or a structure. The parliament, at times, comes up with guiding principles and gives the executive authority powers to come up with delegated legislation according to the guiding principles. This paper investigates whether the principle of delegated legislation undermines parliamentary legislative power. This question will be approached from the basic elements of delegated legislation, the advantages and the disadvantages of delegated legislation. After considering all these, the question on whether the parliamentary power is undermined will then be tackled. Advantages of delegated legislation As noted above, delegated legislation is legislation that is not passed by parliament but a body who parliament has conferred the legislative powers. A notable advantage of delegated legislation is that it allows the parliament to involve itself with matters of policy and public importance, and leave the finer details to be filled by someone else. It is noted that parliament takes a lot of time in coming up with legislation, and it may never be possible to come up with all legislation touching on all aspects. Therefore, delegated legislation is important because it enables the parliament to concentrate on other matters. The second advantage of delegated legislation is that it allows the legislation to be made by those people who are well conversant t the subject of legislation. Some of the subjects of delegated legislation require technical knowledge that the parliament will not be able to provide without carrying out deep research. An example is giving an architectural body the power to make laws pertaining to architectural designs because they are conversant with the architectural designs. The parliament just comes up with the skeleton of what the law should look like, then the specializing body to come up with the specifics. It would be awkward and even impossible for the parliament to come up with distinct architectural laws. The other advantage of delegated legislation is that it is more efficient and economical to come up with as compared to primary legislation. The delegated legislation do not need special procedures as it is in the parliament and neither does it need presidential assent before it becomes law. This is cheaper and more efficient in the end, as compared to primary legislation. The formulation of delegated legislation is also not confined to the executive authority vested with the power. The persons to formulate delegated legislation are free to consult with experts and players in the industry on the importance and the impact of the delegated legislation, and how well it can be put to ensure utmost advantage for the highest number of people. For primary legislation, the legislative function does minimal consultation by inviting opinions by the members of the public. Therefore, delegated legislation is more acceptable in the industry after consultation. The notable disadvantage of delegated legislation is that it does not attract much attention the way primary legislation does. Therefore, in the end most people will not be aware of the law, although ignorance of the law is not a defence. To remedy this disadvantage, the parliament mostly through the parent Act mandates the passage of delegated legislation through a statutory instrument that will enable a publication of the legislation, enabling public access. This is mostly the case apart from in cases where the delegated legislation applies to specific persons who can easily be notified on the existing legislation. The type of statutory instrument depends on the organ that is responsible for making the legislation. Statutory instrument are made by governmental ministries for matters that fall under the ministries. There is usually one blanket legislation giving the ministers to make such legislation. By laws is delegated legislation that is made by the local governments and authorities pertaining to their areas of jurisdictions. Delegated legislation and the doctrine of ultra vires From the above discussion it is noted that delegated legislation is made by executive through powers granted by parliament. When an executive body or any other body apart from parliament makes laws without it having sufficient authority, it is said to have acted ultra vires. The enabling statute must specify the powers given and the type of legislation to be enacted. Any legislation that is ultra vires is void and cannot be enforced. There are two instances where a statute can be said to be ultravires. The statute can be substantially ultra vires or procedurally ultra vires. Procedural ultra vires Procedural ultra vires occurs when the public body making subsidiary legislation fails to follow the procedure that is stipulated in the enabling statute. When the public body oversteps its mandate and makes such legislation, it is said to have abused the powers it has been granted, and the legislation made ill be void. In the case of Agricultural Training Board v Aylesbury Mushroom s Ltd (1972), the minister of labour was given powers to make delegated legislation about the building of a technical college. The enabling stature required the minister to consult al the affected persons before coming up with such legislation. The minister consulted all the other stakeholders apart from the mushroom growers association who constituted almost 100% of all the mushroom growers. The mushroom growers moved to court for judicial review that the statute was ultra vires. The court held that the statute was procedurally ultra vires as the minister had failed to consult and hence was held to be void. In this case also, the courts held that consultation only meant consultation alone, and there was no mandate for the minister to include the suggestions received in the delegated legislation. The choice on whether to include them or not laid with the minister. In yet another case of Bailey v Williamson (1873) 217, the public body was charged with responsibility of tabling the delegated legislation in parliament before the same became active. The public body failed to table the legislation in parliament, and the courts held that the requirement was only directory but not statutory. Therefore, the legislation was not void. In addition, the public body should not only make a delegated legislation to fulfill the making of such a statute. The consultation done should be reasonable, and it should be to enable the public body make a reasonable and all inclusive statute. In the case of R v Secretary of State for Health, ex parte U. S. Tobacco International Inc (1992) 1 QB 353., the public body was mandated to come up with delegated legislation after consultation with scientific experts and the stakeholders of the tobacco sector. The secretary of state came up with a legislation banning the oral snuff tobacco and this was the same tobacco that was exported by the US tobacco company to Europe. The secretary of state when consulting with the US Tobacco company did not disclose all the information from the experts on the poisonous effects of the tobacco oral snuff. On application for judicial review, the court held that the refusal to disclose the text of the scientific report was malicious and it was geared towards avoiding a factual confrontation. The delegated legislation was declared void. This case goes to show that the will of the person making the delegated legislation will be investigated by the courts to decide whether the statute was made in good faith. The above interception of parliament on the public body when the procedures are not followed, shows that even if the parliament delegates the legislative power, they still have utmost control on the making of the delegated legislation step by step, and the public body has no much discretion on the kind of legislation to make. Therefore, in making delegated legislation, parliament is still supreme even though it is not the one making the laws. Substantive ultra vires In substantive ultra vires, the powers given to the public body is much less than the statute that they come up with. The substantive ultra vires relate to the contents of the statute, and what the enabling act empowers the public body to come up with. If a public body oversteps its mandate and comes up with a statute that it has no power to come up with, the statute will be declared ultra vires and void. In the case of R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000) QBD, the public body was given powers by the education Act to come up with subsidiary legislation. The public body came up with a legislation on teacher appraisal, that also set up standards and qualifications for increase in pay. The court was presented with this matter, and it was held that the public body had overstepped its mandate and abused the powers it had been granted because what they came up with was not authorized by the Education Act. The statute was declared void. Therefore, it is also noted that parliament also have control on what it to be contained in the delegated legislation, and not only the procedure. The powers of the parliament are still upheld even in the contents of the delegated legislation, and any attempts by the public body to decide what it wants to delegate about will be cut shot if the delegated legislation overrides the powers that have been granted. The other element of delegated legislation is unreasonableness. The above two aspects of procedural and substantial compliance are issues parliamentary control. However the reasonableness test is a test of judicial control whereby the courts inquire into the delegated legislation to check whether what is delegated about is reasonable. In the case of Minister for Primary Industries & Energy v. Austral Fisheries P/L [1993] FCA 46, the court exercised its powers to declare void an unreasonable statute. In that case, the public body was charged with the responsibility of overseeing fishing in the area, and many incidences of overfishing were being reported. The public body imposed quotas on various areas and the affected residents went to court to declare that the delegated legislation was void. The court held that the imposition of quotas was unreasonable, and that it was not what the parliament intended when it was giving out powers to make subsidiary legislation. However, the courts are reluctant to allow this test of reasonableness in most instances, because of the subjectivity involved. What may be reasonable to one person may not be reasonable to another. In such instance in the case of De Silvia v Minister for Immigration and Multicultural Affairs, the courts refused to apply the unreasonableness test on a statutory instrument that allowed those that settled in Australia by November 1993 to be given citizenship. The court held that there is a thin line between unreasonableness and policy and the courts must be extra careful. On top of the unreasonable test, the courts also look at the unreasonable proportionality to analyze the reasonableness of a delegated legislation. In the case of South Australia v Tanner (1989) 166 CLR 161, the court was faced with a question of unreasonable proportionality. In such a test, the courts consider whether the action done is in line with the intended primary legislation. In this present case, the legislation prohibited pollution, and the delegated legislation prohibited the development of aviaries. The delegated legislation was challenged on the unreasonable proportionality segment, and it was held that the legislation was indeed reasonable. The end action of prohibiting an aviary could be connected with the primary legislation as it would prevent pollution. Analysis The above analysis of the various aspects of delegated legislation gives one the nature of delegated legislation and how it should be done. The parliament controls the procedure and the content of delegated legislation through the enabling Act. This prevents the public bodies concerned to overstep their mandate and come up with legislation that does not suit the parent Act. The parliament also has many other avenues of controlling the making of delegated legislation. The first instance is that the parliament has powers over the parent Act. Without the parent Act, the subsidiary legislation will not be in existence. The parent Act is the act that gives the powers and procedures of making the subsidiary legislation, and the parent Act is made by the parliament. The parliament also has power to amend the parent Act or even repeal the Act through its law making powers. When the parliament amends the parent Act to do away with the provision enabling the delegated legislation, the delegated legislations formed under the Act will lose their powers and become void. When the parent Act is repealed by the parliament, then the subsidiary legislation will also stand repealed and cease applying because it no longer have any legal backing. Parliaments also have a delegative power scrutiny committee, that is charged with the responsibility of scrutinizing the delegated power before the parent act is passed. The committee presents a report on delegated powers before the bill (enabling Act) passes the committee stage of parliament. The committee reports to the house on the appropriateness of the powers that have been delegated, and the public policy aspect such as public security as regards the delegated legislation. Issues touching on public policy such as national security may not be delegated to any body through any statute. The committee is also required to report on whether the delegated legislation should be subjected to parliamentary scrutiny the moment it is formulated. This committee works at the point when the parent Act is formulated and passed by the parliament it works proactively to ensure that whatever is delegated fits to be delegated and that parliament does not delegate excessive powers. This shows that the parliament has control of delegated legislation even long before the power is delegated. The parliament makes a conscious decision on whether to delegate or not, and therefore, delegation is not by chance. Another parliamentary committee, the Joint Select Committee on Statutory Instruments is a committee of parliament also known as the scrutiny committee is a committee of parliament that it charged with the scrutiny of all statutory instruments that are passed. The committee scrutinizes the statutory instruments and will refer them to parliament if it noted unusual issues with the statutory instruments. If it notes that the instrument is made by overstepping the mandate that the parliament has given, or if the instrument has powers that were unforeseen by the parliament before when delegating the powers, it will require them to be tabled in parliament for directions of the same. Therefore, this is a committee that is to safeguard the public before the legislation applied to the public. At times, when the parliament is formulating the parent Act, some oversight is had on delegated legislation and the parliament end up delegating something it did not wish to delegate. Therefore, this committee is imperative because it scrutinizes the statutory instrument before it is applied to the public. Resolution procedures also applied to statutory instruments. Some statutory provisions require positive resolution procedures, and this means that they have to be approved by parliament before they become law. These are mostly legislations of public importance, and those that the administrative body can overuse their mandate to come up with unfair legislation. Others are subjected to negative resolutions whereby the statutory instrument automatically becomes law after a number of days if the parliament does not reject them. The bulk of statutory instruments fall under this category, and this is because it will be unreasonable to invite parliament to approve all the delegated legislations yet the parliament delegated it for efficiency. In conclusion, it is noted that delegated legislation does not usurp the power of parliament; rather it enhances the parliamentary power through the various powers retained by parliament over delegated legislation. The parliament is still vested with wide powers before it delegates legislation, during the making of the delegated legislation and before the delegated legislation becomes law. The delegated legislation also depends on the parent Act all the days of its application, and any alteration of the parent Act by the parliament has the effect of disabling the delegated legislation. The parliament also controls the procedure of the delegated legislation by requiring consultation with various stakeholders of the Act. Another aspect whereby the parliament is superior than the administrative powers making the delegated legislation is when the courts impose their control on the administrative bodies through the unreasonableness test and the doctrine of ultra vires. The courts do not have such powers on the legislature. References Agricultural Training Board v Aylesbury Mushroom s Ltd (1972) Bailey v Williamson (1873) 217 De Silvia v Minister for Immigration and Multicultural Affairs Minister for Primary Industries & Energy v. Austral Fisheries P/L [1993] FCA 46 R v Secretary of State for Health, ex parte U. S. Tobacco International Inc (1992) 1 QB 353 R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000) QBD South Australia v Tanner (1989) 166 CLR 161 Read More