WHAT IS DELEGATED LEGISLATION
Introduction
In a previous article InsidePolitics looked at the extent to which Parliament was failing to uphold one of its core objectives - the passing of legislation.
Interestingly, while Parliament is responsible for the formulation of the bulk of South Africa’s laws, not all legislation is required to be passed by Parliament. Delegated legislation - also referred to as secondary or subordinate legislation - is such an example. So, what is delegated legislation, and how does it work?
Wikipedia defines delegated legislation as “law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of the acts.”
Parliament’s website is a little more vague, and describes delegated legislation as “when a minister makes legislation by issuing regulations rather than going through the lawmaking process”
The KwaZulu-Natal provincial legislature’s website further adds that it is not only government departments that have this power but also other agencies and boards.
But that is all a little technocratic. A more simple (and comprehensive) definition would be as follows: Delegated legislation refers to those Acts passed by Parliament or a Province, which defers the right to create further legislation necessary for that Act to be fully implemented, to a delegated ‘administrator’.
(Note: The definition above refers to one specific type of delegated legislation, formally known as a regulation, it is also the most common. There are, however, two other types of delegated legislation: Proclamations - these are usually issued by the President and Premiers to put Acts into operation, appoint commissions of enquiry, etc. and Rules which are the rules issued by the Rules Board in terms of the Supreme Court Act or made in terms of the Magistrates Court Act for purposes of governing the detailed procedures to be followed by litigants (and practitioners) and rules made by the councils of the different law societies that regulate certain matters relating to the profession. Regulations are by far the most common form of delegated legislation, having the most far-reaching effects and is therefore the focus of this blog)
Advantages and Disadvantages
Delegated legislation has a number of advantages over ‘standard’ legislation, three of these being:
•Taking pressure off Parliament as laws may be enacted without taking up parliamentary time;
•It often results in a more thorough, detailed piece of legislation due to the administrators who have been delegated legislative powers having a better and more technical knowledge of the subject;
•Being able to deal speedily with arising problems or changing circumstances which were not foreseen when the original piece of legislation was drafted thereby making legislation more flexible
The other side of the coin is the disadvantages, of which one of the most significant is that accountability and parliamentary control is lost. Put another way, elected representatives are removed from the equation. There is the danger that Government and other bodies have the power to alter legislation, even to change the very enabling Act that conferred the power to them and also to pass legislation setting out entirely new principles without it going through Parliament.
Another problem is that the delegated legislation that is passed is not well publicised and there is therefore often very little public knowledge of these laws - further adding to the accountability problem.
This is not to say that these problems cannot be dealt with, especially the loss of parliamentary control.
In fact, if dealt with<
| Posted on 14/2/2008
 |  | |