INDEX NUMBER: BL21021575

COURSE CODE: MFL 261

SUBJECT: ADMINISTRATIVE LAW 1

COHORT INTAKE: 2021 B

SESSION: WEEKEND 2021B

DATE OF ASSIGNMENT: 5TH MARCH 2023

QUESTION: DELEGATED LEGISLATION IS A NECESSARY EVIL, DISCUSS.

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The power to enact laws is a primary power of parliament. Parliament, however frequently
enact legislation containing provisions which empower the executive, judiciary and legislative to
make regulations or other forms of instruments which provided that they are properly made
and have the effect of law. This form of law is referred to as Delegated Legislative.

Delegated legislation is a doctrine based on the separation of powers concept, limiting

legislature’s ability to transfer its legislative power to another governmental branch, especially
the executive branch and may take varied forms such as orders, rules, regulations, byelaws, and
directions.

Simply put, delegated legislation are laws that are made outside parliament. it is a law made by
some people or body other than parliament but with the permission of parliament. The
autonomy is laid down in the parent Act of parliament, which is the constitution.

Article 11(7) of the constitution of Ghana, 1992, indicates that any order, rule or regulations
made by a person or authority under a power conferred by this constitution or any other law
shall;

(a) Be laid before parliament

(b) Be published in the gazette on the day it is laid before parliament and
(c) Come into force at the expiration of 21(twenty- one) sitting days after being so laid
unless parliament before the expiration of the 21 days, annuls the order, rule or
regulation by the votes of not less than two-thirds of all the members of parliament.

Statutory instruments are the most common type of delegated legislation. By the Statutory
Instruments Act, 1959 section 3, these are instrument made by government or its agencies,
directly or indirectly under a power conferred by an enactment (Act of Parliament) for
enactment of specific statues. They include byelaws, orders, statutory instrument, ordinance,
rules and regulations. They are also referred to as secondary, delegated or subordinate
legislations. Many statutory instruments are not subject to parliamentary procedure. Where
parliament procedure applies, the statutory instrument must be formally presented to
parliament.

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The process by which delegated legislation is enacted usually begin with the development of a
regulatory proposal by the body or person responsible for enabling the act and ends with
parliamentary scrutiny of the regulation.

Delegated legislation as a new law does not need presidential accent. Once the 211 days
elapses, it is passed and it becomes a law. The power to make a statutory instrument also
implies that a power to amend or revoke the instrument once made. This is laid down in section
14(1) of the Statutory Instrument Act, which applies unless the context of the empowering
enactment otherwise requires. The amendment or revocation must be done by the same
authority, as has power to make original instrument and must be exercised in the same
manner.

One controversial issue in relation to delegated legislation is whether the exercise of a

delegated legislative power amounts or is capable of amounting to proper amendment of the
enabling Act.

Advantages of Delegated Legislation

Delegated legislation is unavoidable due to the following advantages;

1. There is the need for expert opinions and expert actions in parliamentary work. It makes
it possible for rules, regulations or byelaws on highly technical subjects or matters to be
made by experts in fields.
2. In addition, delegated legislation ensures that the laws made by parliament are well
detailed and carried out. Parliament will come up with the parent laws and details of the
law will be given to those who will implement it.
3. Thirdly, delegated legislation reduces the workload on parliament by delegating their
powers. It makes rules or byelaws and to revoke such rules when they are no longer
necessary or relevant.
4. Further to the above advantages of delegated legislation makes making of laws flexible
that is making rules and regulations for each sectors.

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 5. Delegated legislation accords speedy and appropriate actions when needed in making
laws. Delegated legislation allows adequate time for the legislature or body to consider
and make laws.
6. It gives the local people a greater sense of belonging in the political system, in that they
are able to make byelaws to suit their local needs.
7. It is said that, laws made by the legislature are in many cases too technical for the
average citizen to comprehend. Laws passed under delegated legislation however are
easy to understand due to their precision and thoroughness.

Disadvantages of Delegated Legislation

1. Delegated legislation violates the principles of separation of powers, especially as the

individuals or organ or bodies that make the byelaws sanction offenders.
2. Delegated legislation have too much extensive powers to administrative authorities and
officials, which lead to abuses. The misuse of delegated legislation by the state in
periods of emergencies could lead to dictatorship.
3. It violates the principles of the rules of law, for there is the tendency for some of the
rules or bylaws to curtail the liberties of citizens.
4. Delegated legislation is undemocratic because the individuals and are not elected
lawmakers of the people.
5. The level of control of delegated legislation by the judiciary and legislature may be
ineffective.

Limitations of Delegated Legislation

1. The court have a duty to protect the rights and liberties of the citizens. The court can
therefore declare any legislation illegal, unconstitutional and or ultra vires should such
legislation violate the rights of citizens.

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 2. Parliament usually has that constitutional responsibility of controlling delegated
legislation by considering, approving or rejecting any rules, byelaws or regulations under
delegated legislation.
3. Public outcry or protest serves as a serious check on the bodies empowered to enact
delegated legislation. Members of the public can protest to such a body as public
complaints for the repeal or amendment of the law.
4. The media helps to control delegated legislation by publicizing such laws and offering
the public the opportunity to criticize and raise objections as necessary.

How to control the Evils of Delegated Legislation

There is the tendency to abuse powers conferred or delegated hence there are mechanisms to
control delegated legislation. There are three (3) means to control delegated legislation and
these are the procedural, parliamentary and judicial.

1. Procedural control – under the procedural control, before the power is delegated,
interested parties are consulted to make an input. This is referred to as prior
consultation. This means that under the parent act or constitution, certain guidelines
are given which need to be followed while whether it is mandatory or directory to
follow it or not. Article 11(7) lays down the procedure on how laws orders, rules and
regulations made by persons or authority are laid before parliament. It is not possible
for parliament to exercise effective control over delegated legislation. Therefore, certain
procedural safeguards have been provided what are relevant to keep constant watch
over the exercise of this power by the administrative authorities.
2. Judicial control – the judicial control is sub – divided into the doctrine of ultra vires and
the use of the prerogative writs. The doctrine of ultra vires may be applicable with
regards to procedural requirement or may apply to the substantive rule. The doctrine of
ultra vires is basically explained beyond one’s powers.
The prerogative writs may also be used to control delegated legislation .Certiorari may
be used by the High Court to order a court below to perform within the powers assigned

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 to it. In addition, mandamus can be used to compel a public officer to perform his or her
duty.
The court has to see to it that, the power delegated is within the ambit of the
constitution as prescribed. Judicial review is more effective because the court do not
recommend but it clearly strikes down the rule, which is ultra vires in nature as per
Article 2 of the constitution, 1992 enforcement of the constitution.

3. Parliamentary control – Parliament does not have much control over delegated
legislation. Once they delegate, the oversee aspect is somehow buried. Parliament may
reject the law passed under delegated legislation if it detects there is a defeat. It can
also amend or later it. Parliament scrutinizes most delegated legislation to ensure that
their provision do not exceed the powers approved by parliament itself. Parliament
control is an inherent constitutional function.

The reason why delegated legislation is necessary is entirely because the parliament does not
have time to consider and debate every small detail of complex regulations. In addition, the
parliament may not have the necessary technical expertise or knowledge required, for example
health and safety regulations in different industries need expert knowledge on the other hand
local parking regulations need local knowledge. Modern society has become very complicated
and technical so that it is impossible for members of parliament to have all the knowledge,
which is required to draw up laws on controlling technology or ensuring environment safety. It
is better for the parliament to debate the main principles thoroughly but leave the detail to be
filled in by those who have expert knowledge of it.

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References

The Constitution, 1992

The Local Governance Act, 2016 (Act 936)

Bradley, A. W. and Ewing, K. D. (2007). Constitutional and Administrative Law (14th Ed.).

Pearson Education Limited.

Khan, H. (2012). Principles of Administrative Law: A Comparative Study. Oxford University

Press.