Article 84 of the current Development Planning Act is structured into three distinct sub-articles, which provide as follows:

“(1) Regulations under this Act shall be made by the Minister after consultation with the Authority, and except for regulations under article 85(2)(a), (b) and (m) and in the cases referred to in sub-article (2) hereof, shall not be made unless a draft of the said regulations has been issued for public consultation thereby allowing any person a period of at least two weeks to make representations to the Minister stating how in his opinion the proposed regulations could be improved to reach their ultimate aim.

(2) The provisions of sub-article (1) with regard to the publication of a draft of the regulations for public consultation shall not apply in respect of any regulations which the Minister declares to be urgent or when a form of public consultation was already carried out before the date of coming into force of this Act.

(3) When the Minister makes regulations concerning the procedure before the Executive Council or any board, commission or other body established under this Act, he shall also consult the Executive Council or such board, commission or body.”

Bill 143 is proposing Article 84 to be reworded as follows:

“84. (1) Regulations under this Act shall be made by the Minister after consultation with the Authority.

(2) When the Minister makes regulations concerning the procedure before the Executive Council or any board, commission or other body established under this Act, he shall also consult the Executive Council or such board, commission or body.”

Under the current Development Planning Act, Article 84(1) obliges the Minister to consult the Planning Authority and—save for narrow exceptions under Article 85(2)(a), (b) and (m) )—including internal administrative matters, technical or fee-setting instruments, and certain enforcement provisions – and the urgent-case provision in Article 84(2)—to publish a draft of proposed regulations for public consultation, allowing at least two weeks for representations, thereby creating a legal guarantee of prior public engagement before most ministerial regulations are enacted. Indeed, as thing stand, Article 84(2) removes this obligation in urgent cases or where prior public consultation had already been carried out before the Act’s commencement (April 2016). Furthermore, Article 84(3) adds a further duty to consult the Executive Council or other relevant boards whenever procedural rules affecting them are made.

Bill No. 143 of 2025 proposes a targeted simplification: the statutory duty of prior public consultation is removed in its entirety and Article 84 is recast into two provisions only, namely a general obligation for the Minister to consult the Authority and a specific obligation to consult the Executive Council or other relevant bodies when their procedures are directly affected, with the former urgent-case exemption and the detailed carve-outs in Article 85(2)(a), (b) and (m) rendered unnecessary by the new drafting and the previous sub-article structure consolidated so that the content of the existing consult-the-bodies clause is retained as the new sub-article (2) while the former numbering of sub-article (3) is deleted.

Properly understood, the reform does not uproot a universal participatory entitlement because consultation has never been universal: up to now regulations within the categories listed in Article 85(2)(a), (b) and (m) have already been capable of enactment without the statutory two-week consultation, and the Minister has long been empowered to dispense with advance consultation altogether in a duly declared urgent situation. The Bill therefore broadens the space for calibrated discretion rather than dismantling participation as such. By removing the rigid ex ante requirement, the Minister gains the capacity to decide, case by case, when and how to consult the wider public, while the law preserves mandatory institutional consultation with the Planning Authority and obliges targeted engagement with the Executive Council or other bodies whenever their procedures are at stake.

That being said, any subsidiary legislation remains vulnerable to annulment by resolution laid before Parliament under the Interpretation Act (Cap. 249) within twenty-eight days of being made, a control that is admittedly reactive rather than proactive but nonetheless constitutes a constitutional backstop against ill-considered or politically unsupported measures. Moreover, all subsidiary legislation remains subject to judicial scrutiny under Article 116 of the Constitution of Malta, which grants the Maltese Courts jurisdiction to declare any law, including regulations or other forms of subsidiary legislation, void to the extent that it is inconsistent with the provisions of the Constitution or exceed the powers conferred by the parent Act. In practice, this means that even where the Minister lawfully dispenses with prior public consultation, the resulting regulations may still be struck down if they infringe constitutional rights or exceed the powers conferred by the parent Act

Meanwhile, comparative and doctrinal materials support this recalibration. In the United Kingdom, procedural regulations in the planning sphere are often adopted without a general statutory consultation mandate, and the courts intervene only where non-consultation is irrational or breaches legitimate expectations, as affirmed in R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755; scholars emphasise that British governance operates in what Davidson and Elstub term a “deliberative pragmatic equilibrium,” in which participatory mechanisms are encouraged yet remain flexible, while R. Stokes explains that participation enhances legitimacy but that efficient administration often justifies targeted, proportionate consultation that is not invariably general or exhaustive. Australian practice is analogous: environmental and planning statutes routinely provide for streamlined or exempt pathways for minor or urgent instruments, recognising that formal exhibition can frustrate responsiveness; C. Holley captures this under the rubric of “pragmatic participation,” whereby agencies are encouraged—but not always compelled—to consult, calibrating depth and timing to the regulatory context. C. Sabel’s account of “democratic experimentalism” provides a useful conceptual lens: administrative systems increasingly prefer iterative, performance-oriented accountability and flexible participation over fixed procedural minima, especially where regulatory quality depends on speed, learning, and feedback rather than on formalistic consultation windows.

Meanwhile, at the level of European public law, Article 11 TEU and the Aarhus Convention entrench the value of open and regular dialogue with civil society and public participation in environmental decision-making, but they do not impose an undifferentiated, instrument-agnostic obligation to consult on every species of secondary regulation. Member State practice instead supports a differentiated model reserved for plans and programmes of major effect, leaving procedural and technical instruments to executive judgment within a system of transparency and review.

Thus, when read against these comparators and doctrines, Article 84 does not represent an outlier but situates ministerial discretion within the twin disciplines of parliamentary scrutiny and judicial review. This normative balance struck by the Bill is therefore defensible on both principle and policy.

That being said, the reform’s practical legitimacy will ultimately depend on a culture of responsible Ministerial discretion—ministers should consult widely on instruments of broad public impact and record the reasons where they do not—but the statute need not constitutionalise that culture in every case.

 

  • Davidson, S., & Elstub, S. (2014). Deliberative and Participatory Democracy in the UK. British Journal of Politics and International Relations.
  • Stokes, R. (2012). The Ideology of Public Participation in Planning Law. Informit.
  • Holley, C. (2010). Public Participation, Environmental Law and New Governance. SSRN.
  • Sabel, C. (2001). A Quiet Revolution of Democratic Governance. Governance in the 21st Century.