Friday, December 21, 2012

What are the reasons for growth of delegated legislation?

Many factors are responsible for the rapid growth of delegated legislation in every modern democratic state. The traditional theory ‘laissez-faire’ has been given up by every state and the old ‘police state’ has now become a ‘welfare state’. Because this radical change I the philosophy as to the role to be played by the state, its functions have increased. Consequently, delegated legislation has become essential and inventible. As American lawyer and statesman Root remarks- “The old doctrine of prohibiting the delegation of legislative powers has virtually retired from the field and given up the fight”.
According to the committee on ministers’ power the following factors are responsible for the rapid growth of delegated legislation.
(a) Pressure upon parliamentary time: The horizons of state activities are expanding. The bulk of legislation is so great. It is not possible for the legislature to devote sufficient time to discuss all the matters in detail. Therefore, legislature formulates the general policy – the skeleton and empowers the executive to fill in the details – thus giving flesh and blood to the skeleton so that it may live- by issuing necessary rules, regulation, bye-laws etc.
In the words of Sir Cecil Carr, ‘delegated legislation is a growing child called upon to relieve the parent of the strain of overwork and capable of attending to minor matters, while the parent manages the main business. The Committee on Ministers’ powers has rightly observed: “The truth is, that if parliament were not willing to delegate law making power, parliament would be unable to pass the kind and quality and legislation which modern public opinion requires.”
(b) Technicality: Sometimes, subject matter of legislation is technical in nature. So, assistance of experts is required. Members of parliament may be the best politicians but they are not expert to deal with highly technical matters. These matters are required to be handled by experts. Here, the legislative power may be conferred on experts to deal with the technical problems. i.e. gas, atomic energy, drugs, electricity etc.
(c) Flexibility: Parliament cannot foresee all the contingencies while passing on enactment. To satisfy these demands of unforeseen situation some provisions are required to be made. A legislative amendment is a slow and cumbersome process. But by the device of delegated legislation the executive can meet the situation expeditiously, e.g. bank rate, police regulations, export and import, foreign exchange etc. Therefore, in a number of statutes a ‘removal of difficulty’ clause has been added empowering the administration to overcome such difficulties by exercising delegated power. This Henry VIII clause confers very wide powers
on the Government.
(d) Experiment: The practice of delegated legislation enables the executive to experiment. This method permits rapid utilization of experience and implementation of necessary changes in application of the provisions in the light of such experience. As for example, in road traffic matters, an experiment may be conducted and in the light of its application necessary changes could be made. The advantage of such a course is that it enables the delegate authority to consult interests likely to be affected by a particular law, make actual experiments when necessary and utilize the result of his investigation and experiments in the best possible way. If the rules and regulations are found to be satisfactory, they can be implemented successfully. On the other hand, if they are found to be defective, the defects can be cured immediately.
(e) Emergency: In times of emergency, quick action is required to be taken. The legislative process is not equipped to provide for urgent solution to meet the situation. Delegated legislation is the only convenient- indeed the only possible remedy. Therefore, in times of war and other national emergencies, the executive is vested with extremely wide powers to deal with the situation. There was substantial growth of delegated legislation during the two world wars similarly in cases of epidemics, floods, inflation, economic depression etc. immediate remedial actions are necessary which may not be possible by lengthy legislative process and delegated legislation is the only convenient remedy.
(f) Complexity of modern administration: The complexity of modern administration and the expansion of the functions of the state to the economic and social sphere have rendered it is necessary to resort to new forms of legislation and to give wide powers to various authorities on suitable occasions. In a country like Bangladesh, where control and regulation over private trade, business or property may be required to be imposed, it is necessary that the administration should be given ample power to implement such policy so that immediate action can be taken.
Therefore, there has been rapid growth of delegated legislation in all countries and it becomes indispensable in modern administrative era.