Institution of delegated legislation as a form of legislative and governmental cooperation in state governance system



This article analyzes the most widely used institution in foreign countries — the delegated legislation. Delegated legislation is manifested in the issuance of normative legal acts by these bodies as a result of the transfer of legislative powers by the parliament to the government or another state body. The peculiarities of the application of this institute are analyzed by highlighting the scientific literature.

Keywords: parliament, government, lawmaking, delegated legislation, parliamentary oversight.

One of the most widely used institutions in foreign countries today in dealing with government documents is the delegated Legislation [1]. As a result of the transfer of legislative powers by the parliament to the government or another state body, it is reflected in the issuance of normative legal acts by these bodies that have the force of law. As a rule, the division of delegated legislation often falls on the government. In the future, in connection with the development of parliamentarism, it is possible to study in depth the introduction of this institution in national legislation, using the best practices of foreign countries.

Delegated (also known as subordinate) legislation is legislation made not directly by an Act of the Parliament, but under the authority of an Act of the Parliament. Parliament has regularly and extensively delegated to the Executive Government limited power to make certain regulations under Acts [2]. Its essence is that it is a form of law-making, the adoption of acts equal to the force of law by the head of state or the executive branch on the basis of special powers granted by the legislature. This means that as a result of the transfer of legislative powers by the parliament to the government or another state body, it is manifested in the issuance of normative legal acts by these bodies.

Today, the institute is used in one form or another in the United States, Germany, Great Britain, Sweden, Mexico, France, Portugal, Spain and Italy. As a rule, the division of delegated legislation often falls on the government. In some countries, the constitutions of Spain (Part 3 of Article 82) and France (Article 38) are the only body to which the legislative power of government is delegated.

The legal literature shows that there are three approaches to the pros and cons of competent legislation. The content of the first approach is that, according to it, the subordinate legislation disturbs the balance of the legislative and executive system in the system of separation of powers [3, p. 12]. The representative of the second approach S. Bobotov recognizes the positive role of the delegated legislation in the life of the state and society [4, p. 26]. According to L.Friedman, the representative of the third approach, without denying the important institution of competent legislation, it is necessary to use judicial or other effective methods of control to eliminate its negative aspects [5, p. 26.]. (for instance in United Kingdom Judicial control of delegated legislation is exercised through judicial review. Delegated legislation can be quashed by a court if it is found to be ultra vires (outside the parameters defined in the parent Act). There are two types of ultra vires. In «substantive ultra vires», delegated legislation is deemed void because it goes beyond the powers defined in the parent Act. In «procedural ultra vires», delegated legislation is deemed void because of some procedural deficiency. A court may also quash delegated legislation on the basis of unreasonableness it is also made by judges [6, pp. 3–4.]

The practice of constitutional law in foreign countries shows that the executive branch is not limited to the implementation of laws. In the performance of many functions of the state, the government is the most active subject of a single legislative process. In many countries, the institution of delegated legislation is developing because the legislative process of parliament takes a long time.

Through its inherent flexibility, delegated legislation accommodates changing circumstances such as changing fees for public services, developments in science or minor changes in government policy. Delegated legislation, allows the rapid drafting of emergency powers. In comparison to Acts of Parliament, which may take much time to pass, the flexibility of delegated legislation can be used to solve problems of governance in a timely way.

delegated legislation is already widely used in countries such as Germany, Great Britain, Sweden, France, Spain, Italy, Mexico, Portugal. For example, according to Article 79 of the Italian Constitution, subordinate legislation can also be delegated by parliament to the President in matters of amnesty and pardon [7] . At the end of the twentieth century many countries adopted new Constitutions, which established a new system and introduced new institutions, including provisions on delegated legislation. In the constitutions of Croatia, Moldova, Kazakhstan and Romania this institution was introduced for the first time.

According to T. A. Vasileva, the right of competent legislation of government arises firstly, on the instructions of the parliament on matters within the competence of the parliament (Article 150 of the Constitution of Colombia, Article 80 of the Constitution of Finland, Article 32 of the Constitution of Chile), secondly, in cases where the parliament is unable to act expeditiously on the initiative of the government with parliamentary approval (Article 99 of the Constitution of Argentina, Article 62 of the Constitution of Brazil, Article 23 of the Constitution of Denmark) [8, p. 171.].

In France, Italy, and Spain, the delegated legislation belongs only to the government, and the competent legislative acts developed by it are promulgated by the head of state. According to Article 80 of the GFR Constitution, the competent legislative subjects include the Federal Government, federal ministers and provincial governments. In some cases, the consent of the Bundesrat is required [9].

According to the French Constitution, the government can issue competent legislative acts — ordinances. In doing so, the government asks parliament for permission to accept ordinances for a certain period of time. If parliament approves, it cannot be revoked later. Orders are accepted by the Cabinet of Ministers and the State Council gives its opinion. Interestingly, at the next stage, the ordinances must be signed by the president. In practice, the president may refuse to sign if the head of state and prime minister represent the interests of different political groups. Such acts are as indefinite as laws and may be amended or supplemented in the manner prescribed by law.

Any delegation of legislative authority expects the initiative of Parliament or the government. Despite the fact that the Constitution of Italy, Germany and Spain require parliamentary initiative to transfer its legislative powers, the question is what makes the parliament? It authorizes the transfer of part of the legislative authority (in the case of the government's proposals, as in France) or initiates this process by itself. The problem is to whom will come earlier awareness of the need of delegated legislation. However, this problem becomes a certain importance in France. Article 38 of the Constitution directly secured government initiative. If in Italy, Spain and Germany, the Parliament itself can initiate the process for delegation of legislative powers to sanction or government for its proposal. In France it is only one way — the authorization request of the Government of the transfer of part of the legislative authority.

Typically, the legislative activity of the government is overseen by parliament. Competent legislative activity in foreign countries may be terminated in the following cases:

expiration of the term established by the authorized act (Italy, Spain, Portugal, France);

development of the text of the document issued by the government (Spain); government resignation (Portugal);

dissolution of Parliament (Portugal);

abolition of delegated powers by parliament;

recognition of the act of delegating the legislative power of the parliament as unconstitutional.

The analysis of the legislation of foreign countries shows the following advantages of the competent legislative institution: exceptional flexibility, which facilitates changes in the current legislation; saving parliamentary time (Parliament approves the concept of a legal regulation on an issue and leaves all the work to executive authority. They develop the specific content of law); delegated legislations norms differ concreteness and do not require extra time to interpret due to the small percentage of ambiguous provisions; legislative powers delegated to experts in the appropriate field, possess a high level of professionalism and knowledge of local. Therefore, as a result of the adoption of laws by its executor, professionalism in lawmaking increases.

It is also necessary to note disadvantages of the Institute of delegated legislation: legislative powers are transferred to individuals who do not carry the political responsibility to the voters; expansion of powers of the administrative authorities and the strengthening of the bureaucratic structures carries an especially strong negative.

References:

1. Delegated legislation is law that is not passed by an Act of Parliament but by a government minister, a delegated person or an entity. Delegated legislation is used for a wide variety of purposes such as fixing the date on which an Act of Parliament will come into force; setting fees for a public service; or establishing the details of an Act of Parliament. Delegated legislation is dependent on its parent act, which prescribes its parameters and procedures.
2. This form of law is referred to as “delegated legislation”, “secondary legislation”, “subordinate legislation” or “legislative instruments”. The last is the statutorily-established term. This is law made by the executive government, by ministers and other executive office-holders, without parliamentary enactment.
3. State law of Germany: in 2 volumes: abbr. per. German — M., 1994.--P.12.
4. Bobotov S. V. Introduction to the US legal system / S. V. Bobotov, I. Yu. Zhigachev. — M., 1997.- P. 25.
5. Friedman L. Introduction to American law / L. Friedman. — M., 1993.- P. 26.
6. «Delegated Legislation» (PDF). House of Commons Information Office. August 2011. pp. 3–4. Archived from the original (PDF) on 2021–10–16.
7. https://legalns.com/download/books/cons/italy.pd
8. T. A. Vasilieva Acts of delegated legislation as a source of public law of foreign countries. Proceedings of the Institute of State and Law of the Russian Academy of Sciences No. 1/2011. — p. 171
9. https://legalns.com/download/books/cons/germany.pdf