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 the Act. By Parliament giving
authority for legislation to be delegated it enables other persons or bodies to provide more
detail to an Act of Parliament. Parliament thereby, through primary legislation (i.e. an Act of
Parliament), permit others 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.

Importance of Delegated Legislation

There are several reasons why delegated legislation is important. Firstly, it avoids overloading
the limited Parliamentary timetable as delegated legislation can be amended and/or made
without having to pass an Act through Parliament, which can be time consuming. Changes can
therefore be made to the law without the need to have a new Act of Parliament and it further
avoids Parliament having to spend a lot of their time on technical matters, such as the
clarification of a specific part of the legislation. Secondly, delegated legislation allows law to be
made by those who have the relevant expert knowledge. By way of illustration, a local authority
can make law in accordance with what their locality needs as opposed to having one law across
the board which may not suit their particular area. A particular Local Authority can make a law
to suit local needs and that Local Authority will have the knowledge of what is best for the
locality rather than Parliament. Thirdly, delegated legislation can deal with an emergency
situation as it arises without having to wait for an Act to be passed through Parliament to
resolve the particular situation. Finally, delegated legislation can be used to cover a situation
that Parliament had not anticipated at the time it enacted the piece of legislation, which makes
it flexible and very useful to law-making. Delegated legislation is therefore able to meet the
changing needs of society and also situations which Parliament had not anticipated when they
enacted the Act of Parliament.

Criticisms of Delegated Legislation

Delegated legislation is not without its criticisms. Firstly, it has been suggested that by having
delegated legislation to make and/or amend laws etc it lacks democracy as too much delegated
legislation is made by unelected people. Secondly, 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. In addition, 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. One further criticism of 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 publicised. One reason for the lack of publicity surrounding delegated legislation is
because of the volume of delegated legislation made and this results in the public not being
informed of the changes to law. There has also been concern expressed that too much law is
made through delegated legislation.

Control of Delegated Legislation

There are controls in place in relation to delegated legislation to ensure that those who make
law under it are doing it in an appropriate manner. Parliament exercises control over delegated
legislation in that when the Act of Parliament is created, Parliament stipulate in the Act of
Parliament the parameters with regard to delegated legislation. Further, there are scrutiny
committees which consider delegated legislation within a Bill as it passes through the Houses of
Parliament. Delegated legislation is also subject to control through the Court. A piece of
delegated legislation can be deemed by the Court to be ultra vires. This means that the body
that created the delegated legislation acted beyond the powers conferred to them by statute.
An example where a body would have acted ultra vires would be if the delegated legislation
goes beyond what Parliament intended or where the procedural rules to be followed in relation
to the delegated legislation have not been followed. Any Court action which is brought
challenging delegated legislation is done through the means of Judicial Review. If the Court
finds that a piece of delegated legislation is ultra vires then that legislation can be declared
void.

Types of Delegated Legislation

The following are the three main types of delegated legislation:

By Laws: They are made by Local Authorities to deal with matters within their particular locality.

Statutory Instruments: These are made by Government Ministers and they insert the detail to
Acts of Parliament. Statutory Instruments make up the majority of delegated legislation that is
made. Around 3,000 Statutory Instruments are issued each year

Orders in Council: They are made by the Queen on the advice of the Government and are
usually made when Parliament is not sitting. They can be used by the Government in
emergency situations.
Disadvantages of delegated legislation

Below are some of the disadvantages of delegated legislation:

1. It is contrary to the doctrine of separation of powers:

This is one of the major disadvantages of delegated legislation. Most of the scholarly articles in
the internet provides that delegated legislation actually contradicts the doctrine of
separation of powers. The reason is because administrative authorities use the power of
delegated legislation to fill in the details of statutes which have been passed in primary, broad
or skeletal form by parliament.

These so called details or delegated legislations may affect the rights of people. Scholars also
argue that delegated legislation is an exception to the doctrine of separation of powers, and
that it is unacceptable that persons other than parliament should make laws.

It is not proper that people who are not elected should be allowed to make laws. It is desirable
that the details be filled in by parliament, that is, the elected representative of the people who
can be called to account or sanctioned by defeat at an election for enacting an unfavorable law.
Delegated legislation is contrary to the doctrine of separation of powers and it is a usurpation
of the powers of the parliament.

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2. It is an usurpation of the powers of the parliament:

Another disadvantage and argument against delegated legislation is the fact that affects the
constitutional function of the legislature. Delegated legislation is an usurpation of the law
making powers of the parliament, and it amounts to reduction of the supremacy of parliament
to make law.

3. It is undemocratic and prone to abuse:

From the definitions of delegated legislation I have given at the inception of this article, you will
agree with the argument that delegated legislation is truly prone to abuse. It is undemocratic
for persons who are not elected as parliamentarians and three lacking legislative mandate to
make laws.

It is also submitted that most times, administrative law makers do not have parliamentary
experience and are likely to abuse delegated legislation. This is also one of the major
disadvantages delegated legislation.
 Meaning and demerits of delegation of powers

4. It is a violation of the rule of law:

Rule of law can simply be defined as the Supremacy of the law and authority of the state over
everybody in a political system. What did means is that, at all time, the law is the supreme and
everyone in a political system must obey the law. Now, delegated legislation is a violation of the
rule of law because, the procedure for making delegated legislations is not always as
stipulated by the law. Administrative authorities that make delegated legislation usually make
use of faster methods during law making. Thus, the principle of rule of law is violated.

It has be submitted by many scholars that this is a fundamental defect and a violation of the
rule of law. For this reason, delegated legislation is not advised.

5. Control of delegated legislation is inadequate:

Legislative and judicial control over administrative legislation are inadequate. Parliament has no
time, opportunity nor the special expertise, that may be required to keep close surveillance and
make needed objections to administrative legislations. Delegated legislations made under Acts
of Parliament ought to be laid before the relevant parliament for approval, as a safeguard and
regulatory measure against abuse of power by administrative law makers.

However, the requirement of laying before the House is rarely enforced by parliaments. In
other words, parliamentary control of delegated legislation is often insufficient. Also affected
persons may not invoke judicial intervention or review for may reasons which may include the
cost of litigation, ignorance, indifference, fear of persuasion, intimidation and even the effect of
ouster clauses, saving the validity of administrative actions already taken and so forth.

6. It encourages Arbitrariness and Dictatorship:

The possession of the power to make the law and implement the law, more often than not,
makes the executive or administrative authority too powerful, bold, over confident, insolent,
arrogant and more likely to be arbitrary and dictatorial in his disposition and actions.

7. There is total lack of or insufficient consultation:

Commonly, there is total lack or insufficient consultation of stake holders before delegated
legislations are made. Furthermore, there is no general provision of law for the consultation of
concerned interest before the relevant subordinate authorities to whom power has been
delegated should go ahead to make the delegated legislation.

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8. Inadequate publicity of delegated legislation:

Another disadvantage of delegated legislation is that, there is usually no general provision of
law, making it a mandatory requirement that an administrative lawmaker should embark on
adequate or subsequent publicity of delegated legislation to bring it to the notice of the people.
As a result many people do not know of the existence of such laws, and may breach such laws
without intending to do so.

This is obviously repugnant to natural justice and good conscience where ignorance of the law
is not an excuse. It is undoubtedly one of the major disadvantages of delegated legislation. It
should be noted, however, that in some countries, before any delegated legislation will take
effect, it must be made public according to the law of that country. So this this disadvantage
does not apply in some countries.

9. Inadequate consideration of the impact of delegated legislation:

Delegated legislation is also criticized by many scholars because amendment are frequently
made by administrative authorities without reference to the implication of laws on the lives and
activities of the section of the public which may be affected, by these laws which are often
made without any formality.

The reason for this is because administrative authorities usually have wide discretion to decide
what the content of a delegated legislation should be. It is indeed one of the disadvantages of
delegated legislation.

10. Administrative lawmakers have too much power and discretion:

This is another disadvantage of delegated legislation that really made may people dislike the
the principle. Without any doubt, delegated legislations often confer too much powers and
discretion on the executive and administrative lawmakers at the expense of the other arms of
government, and to the detriment of the people. The administrative lawmaker has wide
discretionary powers. The Delegation of legislative power to ministers, head of departments
and agencies is often done in phrases such as “if the minister is satisfied“, “in his opinion“, “if
it is desirable“. These phrases confer too much power on the delegate to make laws in his
absolute discretion and to take action or not to take action.

This is unfortunate and undesirable in a modern society, where it is desired that the rule of law
should prevail. The fundamental rights and liberties of the individual that make up society
should not be lightly toyed with except in accordance with the due process of law laid down by
the constitution.

Delegates of powers, including the subordinate lawmaker could become an unruly horse in the
absence of a vigilant, adequate and responsive parliament putting in place the necessary
legislative prescription of standard and procedure to guide the administrative law maker.

11. Emergency regulation often infringe civil liberty:

Lastly on the disadvantages of delegated legislation is the fact that delegated legislation
sometimes infringe the rights of citizens, especially during emergency periods.

Emergency regulations which are usually made in the form of delegated legislation, pursuant to
an emergency power statute, often infringe the hard won civil liberties of the people. For this
reason people generally frown at delegated legislation, especially when it is in form of
emergency regulations, because the precious civil liberties of the people should not be toyed
with at the discretion and whims of an administrative lawmaker.