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Published: Fri, 02 Feb 2018
Parliament of malaysia and united kingdom
In Malaysia and United Kingdom, the Parliament have the abilities to grant other relevant bodies such as ministers and local authorities the power to make laws. The laws that are made by these authorized bodies are known as delegated legislation. There are three main types of delegated legislation and they are bye-laws, statutory instruments and Orders in Council. The power to make delegated legislation comes in the form of a ‘parent’ act and it is normally delegated to the relevant ministers or other bodies by the Parliament. ‘Parent’ acts are normally wide framework of the law that needs to be passed and normally contains the general outline of the Act. So the authorized bodies will have to figure out the details of the law and form necessary laws within the authority of the ‘parent’ act.
Therefore, Hilarie Barnett’s statement, ‘Delegated legislation enables the fine tuning of the primary rules to take place, without encumbering Parliament as a whole’ in her book, Constitutional and Administrative Law is rather accurate because the laws under a ‘parent’ act are made by relevant ministers or other local authorities and not the Parliament as a whole. For example, The Coroners and Justice Act 2009 (Commencement No.2) Order 2010 was made by the Secretary of State of Northern Ireland based on the powers granted by section 182 (5) of the Coroners and Justice Act 2009.
Besides that, the very main reason delegated legislation was created in the first place was because the Parliament is too busy to consider the finer details of laws that specifically deals with people’s everyday lives such as costs of parking spots and the average amount of street lights that should be placed on a street. That shows that delegated legislation’s purpose is to not burden or overload the Parliament’s limited timetable. Occasionally, there would be laws that requires a lot of technical considerations and the Parliament may not know the technicalities involved and therefore, they will need to seek the opinions of experts in the related fields. So if the Parliament were to do this for every laws that are passed, they would barely have time to deal with other matters. Thus, by delegating the power to make laws to local authorities, the Parliament will have more time to deal with other issues.
Some local authorities are given the power under particular statues to make delegated legislation that satisfy the needs of the people of the area and this is extremely important because sometimes the Parliament may not know what the people really need. The Act of Parliament which enabled delegated legislation also enables the delegated legislation to have the same legal impact. Thus, delegated legislation is equally as important as any Act of Parliament. Generally, there are more delegated legislation made each year compared to Acts of Parliament. For example, according to the Office of Public Sector Information (OPSI) in the UK, a total of 3468 statutory instruments were passed in the year 2009 alone and currently in year 2010, there are already 486 statutory instruments passed. That shows how important delegated legislation truly is.
One of the features of delegated legislation is that changes can be made to the law without having the Parliament pass a new Act. This is rather important because passing a new Act is an extremely slow process as there would be debates and changes will be made constantly. If a particular section of a ‘parent’ act is outdated and can no longer apply in the current context, the law can just be repealed and a new delegated legislation can be formed within the scope of the ‘parent’ act. For example, chapter 50 of the Insurance Companies Act 1982 in the UK and chapter 20 of the Children’s Homes Act 1982 have been repealed and replaced with newer versions of the law.
Another advantage of delegated legislation is that if ever an emergency arises in a country, delegated legislation can be made to deal with the situation and this simply cannot be done with Acts of Parliament because of the nature of the law. Therefore, delegated legislation can be extremely useful at the times of emergency. For example, in the UK, there is an Emergency Powers Act 1920 that defines what sort of situation can be considered as an emergency and what would be done if ever the country declares a state of emergency. Another example is the Prevention of Terrorism (Temporary Provisions) Act which enables certain prohibited groups to be added to the law. Thus, the major advantage delegated legislation has over Acts of Parliament is the fact that delegated legislation is flexible and is able to meet the changes that happens in a society over time.
Despite all the advantages of delegated legislation, there are also disadvantages and one of them is the fact that there are so many delegated legislation passed a year that it makes it hard for not only common people but also lawyers to keep up. This is mainly due to the fact that delegated legislation is not as widely publicised as Acts of Parliament as Acts of Parliament sometimes may be brought to common people’s attention if the Acts directly involves the people. However, just because the delegated legislation are not widely publicised, it is not an excuse for one to not know them if he or she is brought to court.
Another disadvantage of delegated legislation is there can be very little parliamentary influence in delegated legislation. This is because the local authorities can be seen as the ones in charge in a particular area and they can decide whether to make the necessary law or not. It is also highly likely that the Parliament will not know whether the laws made are really appropriate for the state or if the local authorities are even enforcing the laws made. For example in the case of Customs and Excise v Cure & Deeley (1962), Customs and Excise, for some reason, was granted the power to make laws to their own likings and it was deemed wrong because it is illogical for a government department to have more power than the Parliament.
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