Why delegated legislation?
An area of administrative law worth revisiting is that concerning delegated legislation. This is because the wider the power of delegation is, the lesser is the role of Parliament in exercising law-making functions.
Although Parliament can still undo the legislation made by a person or a body of persons to whom it has entrusted its law-making powers, the tendency, as time went by, has been for Parliament to delegate more of its legislative functions.
This is not in itself something bad, especially when one considers that parliamentarians are part-timers, but one should be vigilant against abuse.
Maltese law should explicitly state that, unless otherwise provided by law, a person or a body of persons authorised by Parliament to make a subsidiary law may not, in turn, delegate his/her law-making power bestowed upon him/her by Parliament to another person or body.
The said person or body delegated by Parliament may make laws only within the authority granted to such person or body. Where a person or body makes a law that such person or body is not authorised to make, or exceeds the powers such person or body has been authorised to exercise, that law should be declared to be null and void to the extent that it is not so authorised to be made.
Moreover, Henry VIII clauses need to be legislatively addressed.
A Henry VIII clause is a provision in a law which authorises a minister, a public officer, another person or a body of persons to change a law enacted by Parliament.
Parliament should resort to Henry VIII clauses only by way of exception. If it does resort to a Henry VIII clause, it should ensure that such clause is applied only in those cases where Parliament enacts a law and authorises a person or a body of persons to amend primary law to bring it in conformity with the newly-enacted law.
Parliament should impose limitations upon the making of Henry VIII clauses to ensure that its legislative function is not usurped by the government.
Such limitations should include, for example, that vested rights are not adversely affected; that the act of delegation does not authorise a person or body to make retroactive legislation or to exercise that law-making function after a certain date; that Parliament reserves the right to annul or amend any subsidiary law; that Parliament may at any time revoke the act of delegation of power or assign it to another person or body, or exercise such law-making function itself; that the act of delegation does not authorise the delegated body or person to impose administrative sanctions retroactively or to make criminal offences with retroactive effect.
The person or body delegated law-making functions should also have to prepare a draft subsidiary law and submit it for public consultation before the final text is approved and consult the public administration, civil society and other organised interests or persons as Parliament may determine.
Foreign jurisdictions do provide for parliamentary scrutiny of delegated legislation. Until such time as a full-time Parliament is resorted to, it should be the duty of Parliament, through a parliamentary officer, to scrutinise delegated legislation and to report to it, or to one of its Standing Committees, on the following cases:
(a) where a subsidiary law imposes a charge on public revenues or contains provisions requiring payments to be made to any public authority in consideration of any licence, or any consent, or of any services rendered;
(b) where a subsidiary law purports to exclude the jurisdiction of the courts or tribunals or to do away with any remedy granted hitherto to any person;
(c) where a subsidiary law purports to have retrospective effect;
(d) where there appears to have been an unjustifiable delay in laying or publicising the subsidiary law;
(e) where there is doubt as to whether the subsidiary law is intra vires its enabling provision or where the subsidiary law is not made under the provision authorising the making of such subsidiary law;
(f) where the terms of the subsidiary law require elucidation;
(g) where the subsidiary law appears to run counter to or makes conflicting provisions with another law;
(h) where, for any reason whatsoever, the drafting of the subsidiary law appears to be defective;
(i) where a subsidiary law prejudices vested rights;
(j) where a subsidiary law runs counter to the Constitution of Malta, the European Convention Act and the European Union Act;
(k) on such other cases Parliament may request a report thereupon.
In this way, the law-making functions of the Executive are monitored and supervised by the House of Representatives.
There is, thus, a neater separation of powers between the Legislature and the Executive and Parliament is in a better position to control the law-making functions of the government.
Kevin Aquilina is the Dean of the Faculty of Laws at the University of Malta.