Keith Mack
The delegation of law-making authority is a complex issue that varies across different political systems. In a parliamentary democracy, the legislature typically holds the power to create laws, but there are situations where law-making authority can be delegated to subordinate powers or individuals with specific expertise. This is known as delegated legislation or subordinate legislation. Delegated legislation allows for rapid law-making and can address technical or local issues that require specialised knowledge. However, the extent to which the legislative branch can delegate its powers is often debated and constrained by constitutional principles such as the separation of powers and due process. The delegation of authority may be granted to administrative agencies or public officials, but it is crucial that proper procedures are followed, and the delegated laws can be scrutinised and, if necessary, overruled by the parliament.
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What You'll Learn
- Delegated legislation: Aids rapid lawmaking, allowing the state government to amend laws without waiting for new acts to be passed by Parliament
- Separation of powers: The lawmaking branch cannot divest itself of power and confer it on another branch
- Due process: Delegations to public agencies require established procedures to be followed, while those to private entities do not
- Technical expertise: Members of Parliament may lack the knowledge and experience required to make certain laws
- Legislative authority: Parliament has the power to permit any person or authority to make legislation
Delegated legislation: Aids rapid lawmaking, allowing the state government to amend laws without waiting for new acts to be passed by Parliament
Delegated legislation is a type of law made by an executive authority, as per the powers granted to them by the primary authority. It is also known as subordinate legislation in administrative law. The main feature of delegated legislation is that it allows the state government to amend laws without waiting for new acts to be passed by Parliament.
The process of creating laws is delegated to executives or bureaucrats, who are considered inferior to the Legislature or under its control. This is done because the members of the Legislature do not have the time or technical expertise to deal with every issue immediately. For example, laws regarding taxation require knowledge and experience, which can be better handled by professionals in that field. Similarly, local authorities can understand the needs of the people in their area more effectively than others.
The Parliament has full authority to permit any person or authority to make legislation. An act of Parliament creates a framework for a particular law, which tends to be an outline of the purpose for which it is created. The Enabling Act is a resolution that authorises the delegation of legislative power. Through this act, the council adopts general regulations, and the delegated power establishes specific principles.
There are three forms of delegated legislation: statutory instrument, orders in council, and by-laws. Delegated legislation has the same legal standing as an act of Parliament, and it can be used to amend a law without waiting for a new act of Parliament to be passed. This aids in rapid lawmaking and allows for the updating of legislation according to the requirements, leading to social welfare.
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Separation of powers: The lawmaking branch cannot divest itself of power and confer it on another branch
The concept of the separation of powers is derived from the text and structure of the US Constitution. The Constitution divides governmental power among three branches: the legislative, executive, and judicial. Each branch has distinct and independent powers and duties, and is checked by the others to prevent any one branch from becoming too powerful.
The legislative branch, which consists of Congress, is responsible for creating laws. As per the nondelegation doctrine, the legislative branch generally cannot delegate its lawmaking responsibilities. However, Congress can provide agencies with regulatory guidelines if it furnishes them with an "intelligible principle" to base their regulations on. This is known as delegated legislation, and it allows the bodies beneath the primary authority or legislature to make laws according to the requirement.
The executive branch, which consists of the President, approves and carries out the laws created by the legislative branch. The President also has the power to veto laws passed by Congress, and to appoint Supreme Court candidates, who are then confirmed by the Senate.
The judicial branch, which consists of the Supreme Court and any lower courts created by Congress, can declare laws unconstitutional. The Supreme Court has elaborated on the separation-of-powers doctrine in several cases, addressing the three branches of government and determining that one branch's actions have infringed upon the core functions of another.
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Due process: Delegations to public agencies require established procedures to be followed, while those to private entities do not
Delegated legislation is a type of law made by executive authorities, as per the powers conferred on them by the primary authority. It is also known as subordinate legislation in administrative law. The main feature of delegated legislation is that it allows the state government to amend laws without waiting for a new act to be passed by parliament. This is especially useful when technology changes and sanctions need to be altered.
Due process is a right guaranteed by the Fifth and Fourteenth Amendments of the US Constitution. It ensures that established procedures are followed when the state acts against individuals "in each case upon individual grounds". Due process does not require a court proceeding or a plenary suit and trial by jury, but instead, a procedure that is "suitable and proper to the nature of the case".
When it comes to delegations to public agencies, due process requires that established procedures be followed. For example, in the context of government employment, the Court has held that employees have an interest in retaining their jobs, and the government has an interest in removing unsatisfactory employees. Therefore, some minimum pre-termination notice and opportunity to respond are required, followed by a full post-termination hearing. In the case of Cole v. Young, it was intimated that due process issues would be raised if federal employees were summarily suspended or dismissed without review, in the interest of national security.
On the other hand, delegations to private entities do not require the same level of due process. In Bi-Metallic Investment Co. v. State Board of Equalization, the Supreme Court held that only politics (the citizen's “power, immediate or remote, over those who make the rule”) controlled the state's action in setting the level of taxes. However, if the dispute concerned a taxpayer's individual liability, the taxpayer had a right to a hearing.
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Technical expertise: Members of Parliament may lack the knowledge and experience required to make certain laws
Parliament can delegate its law-making authority to subordinate powers through what is known as "delegated legislation". This allows the state government to amend laws without waiting for a new act to be passed by Parliament. It also enables the subordinate powers to provide more detail to the act of Parliament. For example, the local authority may have the power to make or amend laws according to the requirements of their respective areas.
One of the reasons for delegating law-making authority is the technical expertise of Members of Parliament. They may lack the knowledge and experience required to make certain laws. For instance, laws regarding taxation require specific knowledge and experience that a professional in that field can provide. Similarly, a local authority can better understand the needs of the people in their area and make more effective decisions regarding welfare purposes.
The UK Parliament has traditionally been dominated by members with backgrounds in social sciences, arts, and humanities. For instance, in the 2015-2017 Parliament, only 17% of MPs with higher education degrees had studied STEM subjects. While the intake of STEM-educated MPs has increased slightly in recent years, it still remains low at 16% as of 2019. This lack of technical expertise may limit STEM debates and the robustness of policymaking.
To address this issue, political parties can play a role in widening the pool of candidates and actively recruiting individuals with STEM backgrounds. Additionally, upskilling current MPs with social sciences backgrounds can help improve their scientific literacy and knowledge. Ultimately, a diverse Parliament with different expertise and experiences is ideal for improving the quality of policymaking.
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Legislative authority: Parliament has the power to permit any person or authority to make legislation
Parliament has the authority to delegate its law-making powers to subordinate bodies. This is known as "delegated legislation", and it allows for the rapid creation of laws without the need for the often slow procedure of passing bills through every stage in Parliament. It also allows for laws to be made by individuals with specific knowledge or experience in a particular field, such as taxation or local welfare.
In the United Kingdom, for example, Parliament has the authority to permit any person or body to make legislation through an Act of Parliament. This Act creates a framework for a particular law, outlining its purpose. This is known as "primary legislation". Once this framework is in place, the designated individual or body can then create "delegated legislation" to fill in the details of the law. This can include making or amending laws to meet the specific needs of their respective areas.
In the United States, the legislative process is slightly different. The U.S. Constitution grants all legislative powers to a bicameral Congress, consisting of the House of Representatives and the Senate. While the House and Senate have equal legislative roles, they have different ways of processing legislation due to their constitutional differences. The House generally allows a numerical majority to process legislation quickly, while the Senate favors deliberation and provides significant procedural leverage to individual senators.
In both the UK and US systems, there are checks and balances in place to ensure that delegated legislation does not exceed the authority granted by Parliament or Congress, respectively. For example, in the UK, the Human Rights Act 1998 preserves parliamentary legislative sovereignty by limiting the courts' powers to making a declaration of incompatibility rather than allowing them to strike down primary legislation. In the US, the President has the power to veto legislation, which can affect the content of bills passed by Congress.
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Frequently asked questions
Yes, parliament can delegate its law-making authority to subordinate powers. This is known as delegated legislation, and it allows the details of laws to be developed by those with expert knowledge of the area.
Delegated legislation helps in making laws more rapidly than the Parliament. The procedure of the Parliament is slow as the bills for every law need to pass through multiple stages. It is also believed that Members of Parliament do not possess the technical ability required to make certain laws.
The Minister for the Environment making regulations about camping in national parks, and the Department of Home Affairs making rules for travel visas.
Yes, delegated laws can be overruled by the Parliament. Each delegated law must be listed on a public register and presented to the Parliament within 6 sitting days of being made. After it has been published on the public register, a member of parliament must request the Senate or House of Representatives overrule the delegated law within 15 sitting days.
