FACULTY OF HUMANITIES AND SOCIAL SCIENCE

DEPARTMENT OF GOVERNANCE, PEACE AND SECURITY STUDIES

TO : MR ALEXANDER J. KONDOWE

FROM : AKUZIKE F. PHIRI

REG NO : BAIRD2521

PROGRAM : INTERNATIONAL RELATIONS AND DIPLOMACY

LEVEL : ONE

SEMESTER : TWO

COURSE TITTLE : LAW 1

COURSE CODE : SSLW 1203

TASK : With the aid of authorities, discuss the advantages and

disadvantages of delegated legislation and explain, if any, the
statutory limitations to delegated legislation

DUE DATE : 30th NOVEMBER, 2022

Delegated legislation is a form of law. It is law made by some person or body other than
parliament, but with the permission of the parliament. It is stated that the authority is laid
down in a parent act of parliament, known as an enabling act which creates a form of
structure of the law and then delegate the powers to others to make a more detailed law 1.
Similarly, in Malawi delegated legislation is one of the important sources of law. It has been
seen by various scholars to be vital law that becomes very helpful in the governance of
society. This delegation takes place when the parliament has delegated its law-making
powers to some subordinate authority. However, this endeavour is accompanied by both
advantages and disadvantages. This essay therefore will discuss these advantages and
disadvantages. It will also explain the operation of this process in detail. The essay will
lastly explain the legal limitation to this delegated legislation.

To begin with, delegated legislation is linked with a country`s constitution. In Malawi, all
legislative powers of the Republic shall be vested in Parliament which shall have the powers
and responsibilities set out in the country`s Constitution 2. In the same way, an Act of the
Parliament shall have primacy over other forms of the law but shall be subjected to the
Constitution.

Therefore, delegated legislation is necessary as it saves time of the parliament. The

insufficient parliamentary time means that government does not have sufficient time to
devote to every rule and act that is being introduced 3 similarly, if in Malawi the parliament
attempts to enact all legislations, a lot of legislations would not be accurately passed and the
whole legislative machine would break down. As a result of this, delegated legislation
would enable legislations to be thoroughly debated whilst saving parliamentary time. The
more procedure and subordinate the matters can be withdrawn form detailed parliamentary
discussion, the great will be the time which parliament can devote to consideration of
essential principle of legislation.

To add, delegated legislation enables laws to be made at a final pace. It can only exist in
relation to an enabling act4. The function of delegated legislation is that it allows the
government to amend a law without having to wait for a new Act of parliament to be passed.
This is because the process involved in deciding and deliberating on a particular legislation

1
Martin Line Jacque, The English legal system,( 2007)
2
The Malawi Constitution
3
Teacher, law, Delegated Legislation in English legal system,(2013)
4
Deakin, University, Researching Legislation, (2022)
can be quite long as the bill has to pass through several stages which could take months to
attain.

Further, delegated legislation can be used to make technical changes to the law of the
country. The technicality of the subject matter is quite crucial as modern legislation often
need the necessary technical provisions before it can be implemented 5. In Malawi, the
delegated legislation contains the many administrative details necessary to ensure that the
provision of the act will perform successfully. It may be administered by the government
departments, local councils or courts. It is then evident that assigning legislative powers to
say government ministers and bodies tend to facilitate such provisions. For instance, the
Members of Parliament do not usually have the required knowledge on certain issues,
whereas delegating legislation to specific ministers and government bodies means that
experts in those areas are able to apply the required principle and knowledge needed to be
included in the legislative programme as they are trained solely for that purpose. Delegated
legislation has in most cases the same legal standing as the Act of Parliament from which it
was created.

Another Argument as to why delegated legislation is necessary is because under delegated

legislation laws can be amended or revoked quite easily by another statue. Hence, proving
that it can easily deal with emergency situation as they arise. In this sense, the function of
delegated legislation is that it allows the government to amend a law without having to wait
for a new Act of parliament to be passed 6. This is an important aspect because it is very
crucial that laws are updated and future needs such as health provision and welfare benefits
are met. This however highlights a great deal of flexibility in the system. It is most like able
to meet the changing needs of society. However, delegated legislature could be revoked if it
proves problematic.

Furthermore, delegated legislation allows law to be made by those who have the relevant
expert knowledge. The idea behind this expert knowledge is that it can be used effectively in
law-making. Obviously, some legislation is highly technical and there is a case for leaving
such law-making to the experts in that particular field 7. Most importantly regulations and
the statutory rules and laws are the common forms of delegated legislation. They are made
by the executive branch of the government and apply to the general population. Some

5
Teacher, Law, Delegated Legislation in English Legal System, (2013)
6
Martin Line Jacque, The English Legal system,( 2007)
7
Cracknell and Clements, Acts and Statutory Instruments: (The Volume of Legislation 1950(2012)
regulation, sometimes ordinances are made by a local government authority and apply to the
citizens of that particular area. Clearly, the rules commonly describe procedure to be
followed in courts.

However, the benefits of delegated legislation come with some form of limitation. Modern
scholars have nevertheless criticized the role played by delegated legislation and have called
for its stoppage.

First, delegated legislation violates the concept of Supremacy of the Parliament. This
concept however suggests that in the arena of law making, the parliament has no rival 8. It
then so happens as a result that the power of delegation allows bodies other than the
parliament to make laws and people are compelled to abide by those laws. This in itself is
violation to the supremacy of the parliament. In this same idea, scholars note that the
complexity of the modern state makes it impossible for parliaments to properly deal with the
voluminous technical detail often present in delegated legislation9

Consequently, delegated legislation violates the concept of separation of governmental

power. The idea states that in the operation of government, the three main organs of the
government; executive, legislature and the judiciary must be independent in membership,
powers and functions10. As a result, in the exercise of delegated legislation, this concept is
ignored. An official is likely to become the legislator, the executive and the judiciary in one
breath.

Similarly, delegated legislation leads to the occurrence to some form of abuse of power. As
a result of the violating the concept of the separation of governmental power by delegated
legislation, legislation is subjected to abuse. Some officials have the tendency to take
advantage of the discretion granted in the enabling act of the government to violate the
rights and liberties of the citizens.

Another point on the limitation of delegated legislation is to do manly with the statutory
structure of legislation, thus it violates the concept of the Rule of Law. One of the major
elements of the country`s Rule of Law is that the law must be certain at all time 11. In other
words, the citizen must by all means know exactly what the law is at all times. However, the
practice of delegated legislation allows for so many laws to exist in the form of by laws. By

8
Morton Cheaster, The Disadvantages of Delegated Legislation, (2016)
9
Lovelock& Lynn, New South Wales Legislative council practice, Federation press, (2008)
10
Cracknell & Clements, Acts and Statutory Instruments, (The volume of Legislation 1950-2012)
11
Martin & Jacque , The English Legal System, (2007)
Laws refers to rules made by an authority subordinate to Parliament for the regulation,
administration or management of their district or property 12. So, in the event that not much
publicity is given to such by laws, it is difficult for a citizen to know exactly what the law is
at all times.

In particular, delegated legislation has another limitation to do with control. It is believed

that with increasing legislation it may eventually be difficult to control. The number of the
bodies issuing delegated legislation is so numerous that at one point there are bound to be
too many of them. As already stated, Parliament may not have the time to monitor
everything especially in this case, how the by-laws impact the people on the ground 13.
Meanwhile, the supremacy of the Parliament has then been affected resulting to it having a
tough time controlling them.

To summarise, both advantages and disadvantages have been laid upon delegated legislation
in this essay. However, it still remains a necessary part of the Malawi government together
with its parliament. Without these time-saving, flexible instruments, the operation of
parliament would slow considerably, making it exceptionally difficult to govern this
country. However, the greater use of these instruments may make it harder to scrutinise
them, with increased risk of poorly considered legislation Being made. Existing safeguards
may be reasonably effective at identifying Examples of overreach. Yet the limitations of
existing oversight mechanisms mean that further reform could be required to ensure proper
scrutiny of delegated legislation.

12
Cracknell and Clement, Acts and Statutory Instruments, (1950-2012)
13
Deakin University, Reserching Legislation,( 2022 )
 Bibliography
Cracknell, & Clements. (2012). Acts and Statutory Instruments: The Volume of Legislation
1950-2012.

Deakin University. (2022). Reserching Legislation. Retrieved from

https://deakin.libguides.com/legislation

Lovelock, L., & Evans , J. (2008). New South Wales Legislative Council Practice.
Federation Press.

Martin, L. J. (2007). The English Legal System (5th ed.). Hodder Education.

Morton, C. (2016, November 21). The disadvantages of Delegated Legislation. Retrieved

from https://www.virtualkollage.com/2016/11/the-disadvantages-of-delegated-
legislation.html?m=1

Teacher, L. (2013, Nivember). Delegated Legislation in English Legal System. Retrieved

from https://www.lawteacher.net/free-law-essays/administrative-law/delegated-
legislation-in-english-legal-system-administrative-law-essay.php?vref=1

The Malawi Constitution. (n.d.).