BUSINESS LAW SEMESTER II ACADEMIC YEAR 2010/2011 WORKSHEET III LEGISLATION

o Recall what legislation is (refer to Worksheet I).

The student should be able to: Explain the function of legislation o Explain the distinction between primary and delegated legislation o List the advantages and explain the criticisms of delegated legislation o Explain why and how delegated legislation is controlled FUNCTIONS OF LEGISLATION - to revise or reform the law - to consolidate laws (consolidation does not change the content of the law; it merely changes the form of the law) - to codify law (make case law into statute law) - to regulate the society, economy and collect revenue - to incorporate treaties to which Jamaica is a party TYPES OF LEGISLATION 1. Primary legislation rules enacted directly by Parliament (Acts of Parliament) 2. Delegated or subsidiary legislation: rules created by a body to which Parliament has delegated the authority to makes such rules. The power must be delegated by Parliament in an Act of Parliament. Ministers and statutory bodies are some of the persons to whom power to make delegated legislation may be given. See for example Banking Act section 38 where the relevant Minister is conferred the power to make regulations for the purpose of giving effect to the Act. And see another example where the power to make regulations has been given to a statutory authority: Financial Services Commission Act, section 18 which gives the Commission, with the Ministers approval, to make regulations for the better carrying out of the purposes of the Act. Delegated legislation may be found in Proclamations, Rules and Regulations (PRR) in the Jamaica Gazette.

ADVANTAGES OF DELEGATED LEGISLATION - saves Parliamentary time - speed (usually brought into force more quickly than primary legislation) - flexibility (may add or remove rules as the demand arises without the need to invoke the more lengthy parliamentary process) - special knowledge which is sometimes required for law-making makes it difficult for Parliament to deal with some aspects of legislation because of technicalities and the level of detail required CRITICISMS OF DELEGATED LEGISLATION - legislative power is relinquished to non-elected, non-parliamentary officials (the fact that Ministers are given law-making powers goes against the grain of the doctrine of separation of powers See Worksheet II) - inadequate monitoring and control of regulations before they become law CONTROLLING DELEGATED LEGISLATION a) Parliamentary control - restricting the scope of the power given to the rule-making body - laying regulations before Parliament - requiring that the regulations be subject to affirmative or negative resolution of Parliament

b) Judicial control - judicial review: the doctrine of ultra vires Courts have the power to determine whether an authority has acted outside the scope of the power granted to it. This is part of the body of law called administrative law. Procedural versus substantive ultra vires Required reading for this worksheet: R. Belle Antoine, Commonwealth Caribbean Law and Legal Systems, London/New York: Routledge-Cavendish Publishing, Ch 13 (pp 229-242)

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