Speaker of Parliament outlines process of making Subsidiary Legislation in Ghana

Speaker of Parliament, Alban Sumana Kingsford Bagbin, on Monday outlined the process of making Subsidiary Legislation in Ghana, as a matter of public education.

He said Subsidiary Legislation, also known as delegated or secondary legislation, was legislation made by an individual or body under powers given to them by an Act of Parliament or by the Constitution.

He said the scope and purpose of Subsidiary Legislation had their roots in common law, designed to provide detailed provisions or administrative measures necessary to enforce primary legislation.

Speaker Bagbin gave the public education in a formal statement to Parliament in respect of issues arising out of the laid and subsequent withdrawal of the Road Traffic (Amendment) Regulations, 2024.

The Speaker apologized to Ghanaians over a controversial amendment to a Legislative Instrument (LI), which seeks to grant public officials the privilege of using sirens on roads and exemption from speedy limits.

The proposed Road Traffic (Amendment) Regulations, 2024, sought to grant public officials such as Ministers of State, Members of Parliament (MPs) and Justices of the Superior Courts of Judicature the privilege of using sirens on the nation’s roads and exemption from speed limits.

Speaker Bagbin reiterated that Subsidiary Legislation allowed for more flexible, responsive, and detailed regulations that could be swiftly amended or introduced without the need to pass a new Act of Parliament.

He said this type of legislation ensured that technical and procedural matters could be dealt with efficiently by those with the relevant expertise.

The Speaker said Article 11(1)(c) of the Constitution of the Republic of Ghana provided that the laws of Ghana shall comprise “any Orders, Rules, and Regulations made by any person or authority under a power conferred by this Constitution.”

He noted that Subsidiary legislation formed an integral part of the legal framework of Ghana.

He said in Ghana, there were two primary types of Subsidiary Legislations: Constitutional Instruments (CI) and Legislative Instruments (LI).

He said CIs were made pursuant to powers conferred by the Constitution itself; and that they were typically used to deal with matters of constitutional importance, providing the necessary details for the implementation of constitutional provisions.

Touching on LIs, the Speaker said LIs were made under powers conferred by an Act of Parliament and that they were generally used to make detailed rules and regulations necessary for the enforcement of primary legislation.

The Speaker said that the Road Traffic Regulations for instance existed to ensure the proper enforcement of its primary legislation, the Road Traffic Act.

He said the process of making CIs and LIs was governed by Article 11(7) of the Constitution, which outlined a clear and structured procedure.

He said any Order, Rule, or Regulation made under a power conferred by the Constitution or any other law must be laid before Parliament.

Speaker Bagbin said the instrument must be published in the Gazette on the same day it is laid before Parliament; adding that the instrument comes into force at the expiration of 21 sitting days after being laid before Parliament unless annulled by Parliament.

“If Parliament, by a vote of not less than two-thirds of all its members, annuls the Order, Rule, or Regulation within the twenty-one days, the instrument does not come into force,” he said.

He said in the case of Okane and Others versus the Electoral Commission and the Attorney-General, and affirmed in Nii Tetteh Opremeh v Attorney-General and Others and Nana Kwarteng Panin Akosa II and Others v Attorney-General, the Supreme Court outlined the authority of Parliament concerning subsidiary legislation.

“The Court, in my humble view held, rightly, that Parliament does not have the authority to amend any Order, Rule, or Regulation laid before it under Article 11(7),” he said.

“Parliament has only two options; to allow the instrument to pass after twenty-one sitting days or to annul the entire instrument by a two-thirds majority vote”.

He said this judicial interpretation underscored the non-amendable nature of subsidiary legislation once laid before Parliament.

“Honourable Members, building on the judicial interpretations and the constitutional process, Parliament has developed a more rigorous framework within its new standing orders to enhance the scrutiny and efficacy of subsidiary legislation,” the Speaker said.

He said this framework leverages the powers conferred by Article 110 of the Constitution, which allows Parliament to regulate its own procedures.

The Speaker said to ensure that Subsidiary Legislation serves the public interest and adheres to constitutional and legal standards, Parliament had empowered the Subsidiary Legislation Committee with a critical mandate.

He said the Committee’s responsibilities as set out under Order 220 included ensuring that proposed subsidiary legislation aligns with the Constitution, Acts of Parliament, and other laws; detecting any potential inconsistencies, ambiguities, or concerns in the proposed legislation; and offering inputs and recommendations to refine and improve the proposed legislation.

The Speaker said recognising the importance of thorough scrutiny, Parliament had instituted a pre-laying process.

He said this process mandated that the relevant person intending to lay the LI or CI engaged with the Subsidiary Legislation Committee for a comprehensive review before the instrument was officially laid before Parliament.

He said this pre-laying engagement was essential for several reasons such as by reviewing the proposed subsidiary legislation beforehand, the Committee could address potential inconsistencies with the Constitution or other laws and secure the interest of the Ghanaians.

Since a proposed LI or CI might come into force without further input once laid before Parliament, the pre-laying process helps avoid the arduous task of securing a two-thirds majority to annul problematic instruments or waiting for judicial intervention.

He said the committee’s inputs and recommendations during the pre-laying stage ensured that the subsidiary legislation was robust, comprehensive, and reflective of public interest.

He reiterated that it was important to acknowledge that the proposed amendments to the Road Traffic (Amendment) Regulations, which had since been withdrawn, were indeed recommended by the Committee to the Ministry during the pre-laying stage.

Speaker Bagbin said since the LI had then not been brought to the Speaker to admit nor presented as part of the business of the House neither the Speaker nor non-members of the Committee would know such recommendations had been made by the Committee at the pre-laying discussions.

“This process, though regrettable in this instance, does not detract from the overall importance and efficacy of the pre-laying procedure,” he stated.

“In admitting the shortcomings of this particular instance, we reaffirm our commitment to refining and improving our legislative processes. We recognise the concerns of the Ghanaian people and assure them that such issues will be diligently addressed moving forward”.

Concerning the wider implications of the Subsidiary Legislations process, Speaker Bagbin said as Members of the House reflected on the events surrounding the Road Traffic (Amendment) Regulations, it was imperative to consider the broader implications of the current process for making subsidiary legislation.

He said this moment presented an opportunity for them to critically assess whether the existing framework was truly fit for purpose and to explore potential reforms that could enhance legislative scrutiny and accountability.

He said unlike substantive Acts of Parliament, which undergo multiple readings, debates, and detailed scrutiny, Subsidiary Legislation often received less rigorous examination.

He said this limited oversight could result in provisions that might not fully align with the broader legislative intent or public interest.

He said Acts also typically involve extensive public consultation and stakeholder engagement; adding that “in contrast, the process for Subsidiary Legislation did not include sufficient opportunities for public input, leading to a lack of transparency and potential disconnect with the needs and concerns of the citizenry.

He said Subsidiary legislation, by its nature, allowed for the delegation of legislative powers to individuals or bodies other than Parliament; saying “while this can be efficient, it also carries the risk of overreach, where the delegated authority might enact regulations that extend beyond the intended scope or infringe on fundamental rights and freedoms.”

He said as the House reflected on the issues arising from the laying and subsequent withdrawal of the Road Traffic (Amendment) Regulations, it was evident that the nation’s legislative processes, particularly for Subsidiary Legislation, require continuous evaluation and improvement.

He said while the pre-laying process and the work of the Subsidiary Legislation Committee were crucial steps in ensuring the quality and constitutional alignment of our laws, the events surrounding the proposed LI highlight areas where they could enhance transparency, accountability, and public engagement.

“Our commitment to the Ghanaian people mandates that we remain vigilant and proactive in refining our legislative procedures,” he said.

“The concerns raised by our constituents remind us that the laws we create must not only be just and effective but also perceived as such by those we serve.”

He said by addressing the perceived insensitivity and reaffirming their dedication to public welfare, they uphold the trust placed in them as representatives of the people.

Source: GNA

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