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Antonio Fernández de Buján
Catedrático de Derecho Romano de la Universidad Autónoma de Madrid


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The configuration of rule-making powers between the Parliament and the Government. Delegated legislation. (RI §413508)  

- Peter Iliev

The article analyses the theoretical and general comparative legal structure of the problems related to delegated legislation. The attention of the author is also dedicated to the classification of parliaments according to the criteria of their competence. The author considers in detail the reasons for the existence and development of delegated legislation thus describing the advantages and “pro” arguments. The reasons are related to the following circumstances – lack of enough parliamentary time; tendency to “technisation” and need for expert technical knowledge in the law-making process; flexibility; rational experiment; quickness; need for emergency measures in extraordinary situations; necessity of deeper and adequate complying with local and regional interests. The author analyses carefully the model of delegated legislation in the United Kingdom and the British Commonwealth countries. A special attention is dedicated to the “Orders-in-Council” and “Statutory instruments” in their capacity of the most important forms of delegated legislation in Great Britain and the British Commonwealth. The forms of control over the delegated legislation within the British model are classified as follows: A) parliamentary control – via affirmative / negative resolution procedures as well as through the scrutiny parliamentary committee; B) judicial control – the traditional classical judicial control as well as control through the „ultra-vires” doctrine; C) control exercised by the civil society through consultations between the competent ministers and the interested persons, groups and branch organizations which are considered to be affected by the future delegated legislation. The author reveals the peculiarities and characteristics of the “new” model of distribution of rule-making functions between parliament and government in the Fifth French Republic, Portugal and Sweden. The article also describes the most important features of the Spanish model of delegated legislation which is considered to be the modern version of the traditional structure of distribution of rule-making functions between parliament and government. The author also analyses the fundamental characteristics of the Bulgarian model of distribution of rule-making functions between parliament and government and supports the idea that de lege ferenda Bulgaria should follow the Spanish model of delegated legislation.

Keywords: Parliament Government; Delegated legislation.;

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