Delegatedlegislation

Forms & reasons for growth

Assignment for : Barrister Refayetul Karim

Honorable course Teacher

Administrative law

Course code no: LLM.3201

Prepared by: Md. Hasanat Parvez

Roll: 23, LL.M. (2years) Batch: 10th

Dhaka International University

 Preface & Acknowledge

It can be seen from the present set up of the Administration that relations of
the public authorities with the citizens have been deeply changed. Citizens
were not directly involved in the administration in the earlier days. They
were some what isolated from the sphere of Administration. There was a
wide gap between the Administrative organs and the then citizens. The
citizens are closely assonated with the state Administration. In view of these
changing relations; the subject becoming more significant in legal study.

We the students of Mr. Refayetul Karim are grateful to him for making an
easy access to this intriguing and fascinating discipline. Not only his
knowledgeable class lecture but also his dynamic teaching methods make
the subject more attractive and interesting.

This paper has been produced in a very short period and the topic deserves
much more concentration and analysis. It may be a poor paper regarding the
outmost and overall progressiveness of the subject matter, some sort of
lacking and limitations causes it, and I think that a little forgiveness and kind
consideration should be enough.

Md. Hasanat parvez

Dhaka International University

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 Table of contents

Sl Topics Page
01 Abstract 04
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02 Introduction 05

03 Types of delegated legislation 06-07

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04 Types of delegated legislation 08-09

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05 Limitations to Delegated Legislation: 10

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06 Criticisms of Delegated Legislation: 11

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07 Conclusion 12
.

08 References 13
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 Abstract

Delegated legislation is usually created by an Act of Parliament, but it can be made under
the Royal Prerogative (although this is termed subordinate legislation, since delegated
legislation can only be created by delegated: statutory authority).

Delegated legislation, despite saving time suffers from multitudinous problems. For
instance, the necessity of using delegated legislation implies that Parliament has
insufficient time to scrutinize it. Therefore Parliament is not reviewing legislation
properly.

Delegated legislation is necessary for a number of reasons: parliament does not have time
to contemplate and debate every small detail of complex regulations, as it only has a
limited amount of time to pass legislation, delegating legislation will allow however
thoroughly debated regulations to pass through as well as saving parliamentary time.

Another argument for the need of delegated legislation is that parliament may not always
be the best institution to recognize and deal with the needs of local people. As a result
local people elect councilors from certain districts and it is their responsibility to pass
legislation in the form of by-laws to satisfy local needs.

Whether good or bad, delegated legislation is inevitable, and, in the opinion of one of its
members that it was "a necessary evil, inevitable, but nevertheless a tendency to be
watched with misgiving." An advantage of delegated legislation for the user is that
(unlike statutes) judicial review may be sought, although only by 'interested' parties (i.e.
persons directly affected by the legislation).

The lack of parliamentary control on statutory instruments is what makes them good -
time is saved. The ideal for an overburdened, but concerned Parliament is negative
control on all statutory instruments, since the ability exists to stop them but time is not
wasted considering them all.

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 Introduction

Delegated legislation means permitting bodies beneath parliament to pass their own
legislation. delegated legislation is legislation or law that is passed otherwise than in an
Act of Parliament (or an Act of the Scottish Parliament, Northern Ireland Assembly or
National Assembly for Wales). Instead, an enabling Act (also known as the parent Act or
empowering Act) confers a power to make delegated legislation on a Government
Minister or another person or body. Several thousand pieces of delegated legislation are
made each year, compared with only a few dozen Acts of Parliament.

Delegated legislation can be used for a wide variety of purposes, ranging from relatively
narrow, technical matters (such as fixing the date on which an Act of Parliament will
come into force, or setting the level of fees payable for a public service, e.g. the issue of a
passport), to filling in the detail of how an Act setting out broad principles will be
implemented in practice.

Layout of delegated legislation:

Most delegated legislation will begin with a preamble which sets out who is making the
legislation, the authority (precisely which sections of which Acts of Parliament) under
which it is passed and, where appropriate, confirming that any pre-conditions required by
the parent Act (for example, approval of a draft by each House of Parliament, or
consultation with specified organizations) have been met.

Clauses may be grouped under headings and in complex delegated legislation; the
document may be divided into Parts. The main body of the delegated legislation may be
followed by Schedules setting out even more detailed provisions.

There will also usually be an explanatory note describing, in summary form and using
non-legal language, the purpose and scope of the legislation. The explanatory note is for
convenience only and has no legal effect.

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 Types of delegated legislation

Although the sovereignty of Parliament necessarily implies total freedom to create

delegated legislation by what ever form it chooses in practice there are a limited number
of types of delegated legislation.

The three main forms of delegated legislation are statutory instruments, by-laws and
orders in Council. Delegated legislation can take a variety of forms, each of which are for
different purposes. However the boundaries between the different types are not fixed, and
which type of delegated legislation is used will be determined by the wording of the
parent Act.

Statutory instruments are created by government departments for areas under their
responsibility. The Parent Act gives the department¹s permission as well as guidance
about how the new piece of legislation is to be written and processed. Under Statutory
Instruments the Minister for Transport will be able to deal with necessary road traffic
regulations and the Health and Safety Executive may use a Statutory Instrument to
change safety law; statutory instruments give department¹s immense freedom to change
the law and as a result 3,000 statutory instruments are brought into force each year.

By-laws are created by local authorities to cover matters in their own area, which must be
approved by central government. For example Nottingham City Council along with many
other local authorities in the country is enforcing a car ban in the City Centre area. Public
bodies such as the British Airport Authority and the railways can enforce rules about
public behavior on their premises. Another example of a bylaw is the smoking ban on the
London Underground System.

Orders in council are laws passed in an emergency by the government, when parliament
is unable to sit. Under the Emergency Powers Act 1920 orders in Council are approved
by the Privy Council and signed by the Queen. An example of when Orders in Council
could have been used is during the bombing of the World Trade Centre in September

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2001, if the speculations that the Houses of Parliament was next to be attacked came true,
then orders in council would have been the last resort.

Besides these three types there are some other forms of delegated legislations also:

• Orders are usually made by Ministers. An Order is an exercise of executive

powers, for example to create or dissolve a public body. Commencement Orders
are used to set the date on which an Act, or part of an Act, comes into force.
• Regulations are also usually made by Ministers. Regulations are the means by
which substantive and detailed law is made, for example setting out in detail how
an Act is to be implemented. Regulations made under the European Communities
Act 1972 are the means by which the Government most often implements
European law within the United Kingdom.
• Rules set out procedures, for example rules governing court procedures, or the
way in which the Patent Office deals with applications. Rules may be made by
Ministers or, if specified in the parent Act, a senior judge. In Scotland, rules of
court are called Acts of Sederunt or Acts of Adjournal.
• Schemes: for example, schemes made by the Charity Commission to amended
how a charity is governed.
• Directions are a means by which Ministers give legally binding instructions to a
public body about the way it exercises its functions.
• Byelaws are laws of limited application (usually restricted to certain places) made
by local authorities or certain other bodies (for example, train operating
companies or the National Trust for Places of Historic Interest or Natural Beauty)
to control the activities of the people in public spaces, such as in public parks or
on board public transport.

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 The need for delegated legislation

The need for delegated legislation arises because it would be impossible for the drafters
of the primary legislation to envisage all the circumstances that might arise under the
parent Act and for which further legislative provision would be necessary. As such, the
use of delegated legislation provides significant flexibility to keep the law current and
applicable to specific circumstances.

Many factors are responsible for the rapid growth of delegated legislation in every
modern democratic state. The traditional theory of ‘laissez faire’ has been given up by
every state and the old ‘police state’ has now become a ‘welfare state’. Because of this
radical change in the philosophy as to role to be played by the state, their functions have
increase. Consequently, delegated legislation has become essential and inevitable.

Some of the reasons of the growth of the Delegation of Powers are as follows:

1. Pressure upon Parliamentary Time:

As a result of the expanding horizons of the state activity, the bulk of

legislation is so great that it is not possible for the legislation to devote
sufficient time to discuss all the matters in detail. Hence there is need for a
delegation of power.

2. Technicality:

Sometimes, the subject – matter on which legislation is required is so

technical in nature that the legislator, being himself a common man,
cannot be expected to appreciate and legislate on the same, and the
assistance of experts may be required. Hence this lead to the growth of
delegation of power.

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 3. Flexibility:

At the time of passing any legislative enactment, it is impossible to foresee

all the contingencies, and some provision is required to be made for these
unforeseen situations demanding exigent action. Hence there is a need for
flexibility which leads to the growth of delegation of power.

4. Experiment:

The practice of delegated legislation enables the executive to experiment.

The method permits rapid utilization of experience and implementation of
necessary changes.

5. Emergency:

In the time of emergency, quick action is required to be taken. The

legislative process is not equipped to provide for urgent solution to meet
the situation. Hence there is need for delegation of power.

In Devi Das Gopal Krishnan v. State of Punjab, Subba Rao, C.J. provided another
justification for delegated legislation that the Constitution confers a power and imposes a
duty on the legislature to make laws, but in view of the multifarious activities of a
welfare State, it cannot presumably work out all the details to suit varying aspects of a
complex situation. The legislature must necessarily delegate the working out of details to
the executive or any other agency.

The Control of Delegated Legislation

Control by Parliament
The enabling (or parent) Act sets limits on the power given to bodies to pass delegated
legislation

• The Affirmative Resolution procedure requires some statutory instruments to be

voted on by Parliament.

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 • The Negative Resolution procedure means that most statutory instruments
become law unless a debate is requested by a Member of Parliament (MP).
• Government Ministers are accountable and can be questioned by Parliament

Control by the Courts

Delegated Legislation can be challenged in the courts under the doctrine of ultra vires.
(Beyond the power).
Delegated Legislation may be substantive ultra vires;
If the court decides that a piece of delegated legislation is ultra vires the legislation can be
declared void.

Limitations to Delegated Legislation:

There is a limit beyond which delegation may not go. The limit is that essential powers of
legislation cannot be delegated. The essential legislative power consists of the
determination or choice of the legislative policy and of formally enacting that policy into
a binding rule of conduct. The legislature, therefore, may not delegate its function of
laying down legislative policy to an outside authority in respect of a measure and its
formulation as a rule of conduct. So long as a policy is laid down and a standard or limit
established by statue no unconstitutional delegation of legislative power is involved in
leaving to the executive the making of subordinate rules within the prescribed limits and
the determination of facts to which the legislation is to apply.
The next question arises as to what is the constitutional basis on which prohibition of
delegation of law making powers rests. There is no specific provision in the constitution
prohibiting the delegation. The Constitution of U.S.A embodies the doctrine of separation
of powers, which prohibits the executive being given law making powers.

In Edward Mills Co. v. State of Ajmer it was explained where a legislature is given
plenary powers to legislate on a particular subject there must also be an implied power to
make laws incidental to the exercise on such power. It exercise of a power is included in
the grant of power
.

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 Criticisms of Delegated Legislation

Delegated legislation is not without its criticisms. Firstly, it has been suggested that by
having delegated legislation to make and/or amend laws etc it lacks democracy as too
much delegated legislation is made by unelected people. Secondly, delegated legislation
is subject to less Parliamentary scrutiny than primary legislation. Parliament therefore has
a lack of control over delegated legislation and this can lead to inconsistencies in laws. In
addition, delegated legislation therefore has the potential to be used in ways which
Parliament had not anticipated when it conferred the power through the Act of
Parliament. One further criticism of delegated legislation is the lack of publicity
surrounding it. When law is made by statutory instrument the public are not normally
notified of it whereas with Acts of Parliament, on the other hand, they are widely
publicized. One reason for the lack of publicity surrounding delegated legislation is
because of the volume of delegated legislation made and these results in the public not
being informed of the changes to law. There has also been concern expressed that too
much law is made through delegated legislation. Another problem with delegated
legislation is that there may be sub delegation of powers, causing complexity and
confusion.

Delegated legislation also causes complexity - it is impossible to know all of it. However,
it is a defense to a prosecution to plead that the Statutory Instrument had not been
published, unless reasonable steps had been taken to bring it to the attention of the public
or other persons whom the instrument would affect.

There are many important reasons why it is necessary to have controls over delegated
legislation. Currently delegated legislation is made by non-elected bodies away from
democratically elected politicians (parliament) , as a result many people have the power
to pass delegated legislation, which provides a necessity for control, as without controls
bodies would pass outrageous unreasonable legislation which was attempted in the past;
in the Strictland V Hayes Borough Council (1986) where a bylaw prohibiting the singing
or reciting of any obscene language generally, was held to be unreasonable and as a result
the passing of this delegated legislation was rejected.

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 Conclusion

There are many important reasons why it is necessary to have controls over delegated
legislation. Currently delegated legislation is made by non-elected bodies away from
democratically elected politicians (parliament) , as a result many people have the power
to pass delegated legislation, which provides a necessity for control, as without controls
bodies would pass outrageous unreasonable legislation which was attempted in the past;
in the Strictland V Hayes Borough Council (1986) where a bylaw prohibiting the singing
or reciting of any obscene language generally, was held to be unreasonable and as a result
the passing of this delegated legislation was rejected.

Delegating legislation allows law to be made more quickly then parliament, which is vital
for times of emergency. Parliament takes longer as it does not sit all the time and its
procedures is generally quite slow and complex due to the several stages each bill has to
pass through. Delegated legislation can also be amended or revoked relatively easily, so
that the law can be kept up to date and so that the law can meet future needs that arise
such as areas concerning welfare benefits, illustrating a great deal of flexibility in the
system. Otherwise statutes can only be amended or revoked by another complicated and
time-consuming statute.

Another issue which occurs making controls over delegated legislation vital is sub
legislation, which is where law making is handed down another level to people other than
those who were given the original power to do so, to implement important policies.
Creating criticism that our law is made by civil servants (who may know hardly anything
about the law) and just rubber stamped by the Minister of that apartment, this requires
law passed by these civil servants to be checked by the scrutiny committee of parliament
or the courts.

Finally delegated legislation can share the same issues as Acts of Parliament such as
obscure wording that can lead to difficulty in understanding the law, which again makes
controls necessary as parliament or the courts can stop unclear legislation, which will
affect the lives of hundreds of people from passing.

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 References

Books:

01. Administrative law in Bangladesh Md. Shahidul Islam

02. Lectures on Administrative law C. K. Takwani

03. Interpretation of statutes N. S. Bindra

Internet:

http://en.wikipedia.org

http://nuweb.northumbria.ac.uk

http://www.ezinearticles.com

http://www.coursework.info

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