Module 1: Section 2
How do we delegate powers to legislate?
Subsidiary legislation is extensively used in parliamentary systems to supplement primary legislation. It is employed for a wide range of purposes and may be made by a variety of bodies. For those affected by legislation it may have more important implications than the primary legislation under which it is made.
Subsidiary legislation can only be made if primary legislation has delegated the necessary enabling authority by means of enabling provisions, and it may only be made within the limits laid down by the enabling provisions. Accordingly, particular attention must be paid to the drafting of enabling provisions for subsidiary legislation. They must be sufficiently wide to permit the delegate to provide subsidiary legislation for all the matters that are contemplated as requiring it. At the same time, the delegated powers should be only those needed to enable the legislative scheme to be given full effect. As process for making subsidiary instruments does not involve parliamentary debate, consideration may need to be given to ways in which there can be parliamentary oversight without impairing the convenience of this form of law-making.
This Section is designed to enable you to develop a systematic approach when preparing enabling provisions and to draft them in line with best practices and the practices of your jurisdiction. Although the Section focuses on legislative powers, some of the techniques under discussion are also relevant when you are conferring executive powers.
By the end of the Section, you should be able to do the following:
- determine the matters for which delegated powers to legislate are needed and should be authorised;
- draft provisions that delegate legislative powers to make subsidiary legislation in keeping with the practice in your jurisdiction;
- in particular, draft provisions requiring external consultation about proposed subsidiary legislation or providing for parliamentary scrutiny.
This Section is divided into three subsections organized in terms of the following questions:
- GENERAL CONSIDERATIONS
- When should delegated powers be conferred?
- How should matters be divided between primary and subsidiary legislation?
- When is an instrument subsidiary legislation?
- How do the courts approach powers to make subsidiary legislation?
- What are your objectives when drafting enabling provisions?
- When are delegated powers needed?
- How widely should enabling provisions be drafted?
- GENERAL APPROACHES TO DRAFTING SUBSIDIARY LEGISLATIVE POWERS
- What are the basic steps?
- Are there matters that should be expressly authorised?
- What other factors can influence the drafting of subsidiary legislative powers?
- What general legislation may affect the drafting of subsidiary legislative powers?
- PARTICULAR QUESTIONS
- What type of instrument?
- Who is to be the delegate?
- Is any body to be linked with the making? If so, how?
- What powers are to be delegated?
- Are the powers adequate to cover the matters intended?
- What procedures are to be required for making the subsidiary legislation?
- Should external interests be involved in making subsidiary legislation?
- What procedures are required after the making?
Studying this Section
This is another long Section, which you should take in stages. A good deal of Subsections 1 and 2 may be familiar either from your law studies and practice or from your experience in government. But look at this material now from the standpoint of legislative counsel to enable you to develop a systematic approach when working out what to cover when you draft legislation. Give particular attention to your responsibility to ensure that delegated powers are no broader than necessary.
Subsection 3 may prove to be the most demanding as it introduces many considerations that may be new or unfamiliar. It addresses the principal questions you need to ask and the range of possible answers. You may find this helpful both to keep track of your progress and also as a reminder when you come to draft provisions of this kind. This subsection also contains many detailed examples. Make sure you fully grasp the way they illustrate the technique under examination. The activities encourage you to find out local practice. The exercises too are necessarily detailed, but they should enable you to consolidate the trickier matters you are asked to study.
In studying this Section, you will need to refer from time to time to the interpretation legislation of your jurisdiction and to the model Interpretation Act in the Resource Materials.