How can parliament control delegated legislation

Many actions taken under these powers will be purely administrative, but others will involve decisions on matters of policy, which certainly should be subject to scrutiny by the legislature. The problems are threefold: to distinguish between matters of administration and those of policy; to ensure that significant policy matters are brought to the attention of the legislature, for their acceptance or disapproval; and to ensure that any such quasi-laws which affect individuals are reasonably available to them.

There are two common ways by which parliament can control delegated legislation. It can require the delegated legislation to be laid before parliament and that it not come into effect until parliament approves it-either by an affirmative resolution, or by the lapse of a specific period without the legislation having been disallowed.

Alternatively, the delegated legislation may come into immediate effect, but may be disallowed by the parliament within a specified time. These two are the most common methods, but there are many variants.

It is true that the courts have some control over improperly made delegated legislation, but their power is limited to matters such as whether the instrument is within the power delegated, whether there are inconsistencies with other acts, and whether prescribed procedures have been followed. The courts have no control over many of the potentially objectionable features of such legislation.

In any case, legal remedies tend to be expensive and long delayed, and it would surely be better to ensure that the legislation is properly made in the first place. How should an ideal legislature control delegated legislation?

First of all, it must pass an act to ensure that all delegated legislation made under the authority of an act of parliament is laid before the legislature either before or within a brief period of being enacted, and that any delegated legislation not so handled will be of no effect.

The legislature must have control of such legislation, so the act must provide that all delegated legislation must be either approved by an affirmative resolution of the legislature or otherwise be subject to disallowance within a prescribed number of sitting days say fifteen after being laid before the legislature. The government must not be able to prevent an adverse decision by not bringing on the debate.

Finally, if disallowed, the delegated law must not be remade in the same form for a prescribed period say six months without a permissive resolution being passed by the legislature. This is to avoid the sort of absurd conflict which occurred in Australia in The Labor government and the Senate, which was controlled by the opposition, were in conflict over a waterfront regulation.

The Senate disallowed the regulation whenever it met, and the government remade substantially the same regulation whenever the Senate rose, whether for a recess or at the end of a sitting week. The regulation was actually remade twelve times, the farce ending only with a change of government in early and an amendment to the Acts Interpretation Act to prevent a recurrence.

The next step is for the legislature to scrutinise carefully any bills which delegate power to the government to pass laws. The King for the time being, with the Advice of his Council, or the more part of them, may set forth Proclamations under such Penalties and Pains as to him and them shall seem necessary, which shall be observed as though they were made by acts of Parliament.

Our ideal legislature would insist that any exercise of delegated power to amend acts of parliament-which for obvious reasons are generally known as Henry VIII clauses-be extremely rare, be essential, and come into effect only after an affirmative resolution has been passed by each house of parliament.

They are now being produced at Westminster at a rate of about fifteen a year, but in answer to a recent question in the House of Lords about the number of such clauses Baroness Jay said that. Collecting the information for the past decade would require a major exercise which could only be undertaken at disproportionate cost. A typical example of a Henry VIII clause is in the Local Government and Housing Act where it is provided that the Secretary of State may make an order amending, repealing or revoking any provision of any act which was in force at the time or was enacted in the same session.

A new version of a Henry VIII clause was introduced in the UK in by the Deregulation and Contracting Out Act, by which the government is able to issue an order to amend or repeal any acts which impose a burden on business as long as their amendment or repeal does not reduce necessary protection.

Our ideal legislature would ensure that these orders are subject to the same scrutiny as those made under other Henry VIII clauses. All bills which delegate law-making power should be examined to see that the delegation is both necessary and no wider than essential, and that they contain no provisions which would exclude the delegated legislation from parliamentary control, unless they are purely administrative.

It is also important that the power to be delegated is clearly defined. The ideal legislature would also be very wary of any power of sub-delegation given in the bill, for the use of these powers is very difficult for a legislature to scrutinise.

An extreme instance was given to the Commonwealth Conference on Delegated Legislation:. An Act was passed. Regulations were made under the Act. Orders were made under the regulations. These orders delegated certain powers to the Secretary of the Department. The Secretary was empowered to delegate to a senior executive service officer who could delegate the power to delegate to a delegate, and that delegate could delegate the power to make a decision.

What does our ideal legislature do about the delegated legislation once it is produced? It would examine the delegated legislation to see that it was within the power granted by the act, that it was not retrospective, that it did not unnecessarily diminish personal rights and liberties and that it did not give bureaucrats unreviewable power over the public.

If the delegated legislation contained policy matters, these should be closely looked at, to see that they were not of such importance that they should be debated and decided by the legislature as an amendment to the act, rather than being slipped through by regulation. The ideal legislature would also ensure that the delegated legislation was clearly worded, a matter which should definitely not be left exclusively to the lawyers.

An example of absurd drafting whether done by lawyers is not known read:. Such detailed matters cannot possibly be dealt with by the legislature as a whole.

The rationale for delegated legislation is that the legislature as a whole could not possibly find time or have the inclination to deal with the hundreds, perhaps thousands, of delegated laws produced each year.

The only feasible answer is a parliamentary committee examining all the delegated laws as they are produced and reporting to the legislature on any which are defective. This committee must have the power to move disallowance motions, which would have to be dealt with by the legislature. The committee must act in a non-partisan way, which is not as difficult as it sounds, particularly if the committee has independent legal advice.

The contentious issues are usually technical, and the offenders are bureaucrats. However, disallowance of a proposed law some time after it has come into force is not a very satisfactory method of administration. An alternative to disallowance is to provide that the delegated law does not come into effect until the time for possible disallowance has passed. This should be used whenever practicable, but it will not always be appropriate, for in some cases the delay might be very undesirable.

To avoid the confusion caused by disallowance, it is important for the committee to negotiate with the minister to see if the delegated law can be amended to remove the defects, always with the threat of disallowance in the background.

Most ministers are co-operative, often seeming rather surprised at what their bureaucrats are trying to get away with. Nevertheless, bureaucrats being as they are, negotiations will not always be successful, and the legislature must be prepared to disallow if necessary.

Indeed, a legislature which very rarely, or never, disallows delegated legislation is probably ineffective in its control. Although ignorance of the law is said to be no excuse for breaking it, this presupposes that the law in question is reasonably available to those affected by it. In many jurisdictions the availability of delegated legislation, particularly quasi-laws, is grossly inadequate.

The ideal legislature would ensure that all such laws were readily available to those affected by them. It would also ensure that each piece of delegated legislation was accompanied by an explanatory memorandum, setting out the purpose of the delegated law and its mode of operation. Some parliaments are beginning to insist that some delegated laws be accompanied by formal impact statements, setting out the effect of the new law on the target group-business for instance.

Such impact statements may be useful in making bureaucrats think more carefully about what they are actually doing, and may help the parliamentary committee to decide whether a delegated law is of such significance that it should be referred back to the legislature for consideration as an amendment to the act. The danger is that the policy issues raised by the impact statement might cause the committee itself to start debating policy, which would destroy its non-partisan approach and end its usefulness.

This danger must be watched. Delegated laws have a habit of surviving interminably, long after their usefulness has passed. The ideal legislature must ensure that the delegated laws it has accepted are regularly reviewed, and repealed where appropriate. Otherwise there will have to be regular checks of all delegated legislation to weed out those that are no longer needed, but this would leave the initiative with the government rather than the legislature.

Should the legislature be empowered to amend delegated legislation? In view of the complexity and specialist nature of much delegated legislation, and the time the legislature is likely to be able to spare, the answer is that probably it should not.

Certainly none of the twenty legislatures we are considering has such power. It is enough for the legislature to disallow the offensive piece of delegated legislation, to encourage the government to draft an acceptable alternative. As was the case with statute law, an ideal legislature for the control of delegated legislation has never existed.

In practice, performance in this field has ranged from reasonable to deplorable. There is a drafting manual, and annual volumes of statutory instruments are published. The parent act may give either house the power to disallow a statutory instrument, but there is a reluctance in the Lords to press matters to a division.

Their Lordships have not since then attempted to defeat a statutory instrument. There is no formal procedure in the House of Commons for scrutiny of bills to see that any delegated power is necessary and appropriately defined and controlled, but the House of Lords set up a committee to deal with these matters in Quasi-legislation and sub-delegation are virtually uncontrolled, and control of Henry VIII clauses is patchy.

There are something like fifteen acts a year which delegate power to the government to amend acts of parliament, and it is not uncommon for the government to be permittedto exercise the power without an affirmative resolution of the parliament.

The Deregulation and Contracting Out Act gave ministers the power to make orders to repeal or amend any act passed up to the end of the session.

The aim is to remove a statutory burden on a trade, business, profession or individual provided that the minister was satisfied that this would not remove any necessary protection. The arrangements for the control of these orders are much more thorough than those for statutory instruments.

The minister must consult interested parties about a draft order, and then lay before Parliament a proposal for the order, accompanied by a detailed explanatory memorandum.

Each house has set up a committee to consider proposed deregulation orders, and the committees have to support the draft order, propose amendments, or recommend rejection. The House of Commons committee recommended the rejection of three proposed orders between and The minister, if he wishes to proceed with the order, is required to take into account the reports by the deregulation committees, and the draft order is voted upon by both houses.

It is a very tight procedure, with time limits for the various stages. This is all very well for acts passed before the end of the session, but it did not deal with acts passed after then. This was because the government did not consider it proper to pass an act giving the power to repeal future, as yet unmade, legislation. To cover this loophole, the government required that, after April , bills introduced, and secondary legislation laid before Parliament, must be accompanied by a compliance cost assessment where there was an impact on business.

The aim was to ensure that a proper balance was achieved between protecting people at work, consumers and the environment without imposing unnecessary burdens on business or stifling growth, but the procedure did not work very well. In the Blair Government passed an act extending the deregulation procedure to all acts, providing the act is at least two years old when the order is made.

The UK also occasionally uses an unusual type of affirmative resolution, under which a delegated instrument comes into immediate effect but must be approved by an affirmative resolution of each house within 40 days.

It might be thought that the ordinary disallowance procedure would be sufficient in such cases, but in the UK Parliament that procedure does not guarantee the opportunity to vote, and some delegated instruments are felt to be of such significance that Parliament should vote on them. The procedure of the House of Commons for handling such affirmative resolutions is hardly satisfactory. The debate is brief, not more than one and a half hours.

It often takes place before the statutory instruments committee has made its report, and the committee chair sometimes does not even have the opportunity to speak. The system in the Lords is better, for at least they have the committee report before the debate is held.

There are two parliamentary committees dealing with statutory instruments, a joint committee of seven Lords and seven MPs, and a separate Commons select committee made up of the seven MPs on the joint committee to deal with instruments involving taxation or money, over which the Lords have no power. The main feature is that it allows the state government to amend the laws if there is any need without delaying for the new act to be passed by the Parliament.

If there is any requirement then sanctions can also be altered by the delegated legislation as the technology changes. It is believed that when such authority is delegated by the Parliament to any person or authority it enables such person or the authority to provide more detail to the act of the Parliament.

For example , the local authority has power conferred by the superior one to make or amend laws according to the requirement of their respective areas. The delegated legislation plays a very important role as the number of them are more than the acts of the Parliament. It has the same legal standing as the act of Parliament from which it is created.

There are three forms of delegated legislation i. They are the one which is formed by the government. For example — a parent act is an act which permits the parliament for making the law. Orders in the council are generally made by the government when there is a need and it can affect the public at large as well as an individual.

They are created by the local authority which is approved by the Central Government. There are many reasons for the delegation of the legislature. The parliament does not have that much time to deliberate and debate about every topic.

Therefore, delegated legislation helps in making laws rapidly than the Parliament and the procedure of the Parliament is also very slow as the bills for every law needs to pass from every stage. Further, it is also believed that the Member of Parliament does not possess the technical ability which is required to make law. For example — making any law regarding taxation requires knowledge as well as experience which can be done by the person who is professional in that field.

In the case of welfare purpose, the local authority can understand the needs of the people in his area more effectively than others. The democratic bodies have many important powers for the delegated legislation which can be easily used for updating the legislation according to the requirement which leads to social welfare. But there should be control over delegated legislation. Delegated legislation is controlled by the Parliament and the Judiciary. Parliament has the overall control over the delegated legislation as it takes account with the statutory committees which make law through bills.

The main object of parliamentary control is to look that there is no abuse or unnecessary use of the powers given to rulemaking authorities.

In the case of Narendra Kumar v. Union of India , it was held by the Supreme Court that the provision under Section 3 5 of the Essential Commodities Act, , which explains that any rules framed under the Act must be presented before both the houses of the Parliament.

Therefore, clause 4 of Non — Ferrous Control Orders, has no effect until it is presented in the Parliament. There are a number of rules in the area of judicial control over the delegation of legislation which is laid down by the judiciary.

Delegated legislation should protect the rule of law and there should be no arbitrariness. Rules framed which violates the Parent Act are illegal. Rules framed which violates any other statute should also be considered as void. Delegated legislation made with mala fide intention is also considered illegal.

To have a better understanding please go through the attached PowerPoint Presentation. It has a better version of explanation about the Control Mechanism of Delegated Legislation.

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