DELEGATED LEGISLATION Part-1, ADMINISTRATIVE LAW

INTRODUCTION

Delegation of powers means those powers, which are given by the higher authorities to the lower authorities to make certain laws, i.e. powers given by the legislature to administration to enact laws to perform administrative functions.

It would be delegated or subordinate legislation, when-

• The law legislates by the administration with the powers given by the legislature or
• An instrument of legislative nature is made by an authority in exercise of power delegated or conferred by the legislature.

MEANING

The committee on Delegated legislation has appointed out the expression ‘delegated legislation’ is used in 2 senses:

• The exercise of the power of the rule making, delegated to the executive by the legislature. This term is being used where the emphasis is on the limits of constitutionality of expression of such powers.
• The output of the exercises of the power, through rules, regulations, orders, ordinances, etc. this term is being used where the emphasis is on the concreting rules.

As per the literary sense the phrase ‘delegated Legislation” brings about 2 meanings:

• The operation or function of legislating (the phenomenon of Delegated Legislative power delegated to him by Parliament) and
• The laws which results there from (or the subsidiary laws themselves, passed on by ministers in the form and shape of departmental regulations and other related statutory rules and orders.)

DEFINITION

I. Definitions by Black’s Law Dictionary-

“Delegation”: ‘the act of entrusting another with authority or empowering another to act as an agent or representative’. For example- delegation of contractual duties.

“Doctrine of Delegation”: “the principle (based on the Separation of Powers Concept) limiting Legislature’s ability to transfer its legislative power to another Governmental Branch, especially the Executive Branch”.

“Subordinate Legislation”: “Legislation that derives from any authority other than the Sovereign Power in a state and that depends for its continued existence and validity on some superior or supreme authority”.

The principle of Delegated Legislation: “this principle which has been well- established is that the legislature must lay down the guidelines, the principles of guidelines, the principles of policy for the authority to whom power to make subordinate legislation is entrusted.”

II. According to Halsbury’s Laws of England: “When an instrument of legislative nature is made by an authority in exercise of power delegated or conferred by the legislature it is called “subordinate legislation”.

NATURE

I. WORKING (operation):

• Enables the government to make a law, without having to wait for a new act of Parliament to be passed.
• Empowers, authorizes to:
  • Modify or alter sanctions under a given statute or
  • Make technical changes relating to law.
• Plays very important role in the process of making of law as there is more delegated legislation each year than there are Act of parliament.
• Has the same legal standing as the Act of parliament form which it was created.

II. REDUCES LEGISLATURES BURDEN:

Delegated legislation reduces the burden of already overburdened legislature by enabling the executive to make or alter the law under the authority of legislature. Thus, this helps the legislature to concentrate on more important matters and frame policies regarding it.

III. EXPANDING LAWMAKERS:

It allows the law to be made by those who have the required knowledge and experience. For instance, a local authority can be permitted to enact laws with respect to their locality taking into accounts needs instead of making law across the board which may not suit their particular area.

IV. SERVES EMERGENCY:

The process of delegated legislation also plays a significant role in an emergency situation since there is no need to wait for particular Act to be passed through Parliament to resolve the particular situation.

V. EASY LAWMAKING:

Finally, delegated legislation often covers those situations which have not been anticipated by the parliament during the time of enacting legislation, which makes it flexible and very useful to law making. Delegated legislation is therefore, able to meet the changing needs of the society and also situated which parliament had not anticipated when they enacted the Act of Parliament.

ADVANTAGES AND DISADVANTAGES

ADVANTAGES

I. REDUCE PARLIAMENT WORKLOAD:

• The parliament has to pass several legislations within a short span of its life. It has to take such type of intensive work that it can hardly enact the law provisions in details. It is lengthy, time consuming process and also it is expensive to operate parliament process.
• It cannot cope up with the growing needs to overcome that load and it can be possible only through delegating ones legislative authority to the subsidiary ones or the executives.
• Delegated authorities whom an expert resides are more appropriate to make laws and to meet the needs of the community. It saves ample amount of time of the parliament because it gives the members a chance to create or to make rapid changes in small items.

II. MEET TECHNICAL EXPERTISE:

• Today’s world has become very technical and complicated by the introduction of modern means and advancement it technology, so it becomes necessary for the members of parliament to have all knowledge needed for making laws in various fields like on controlling technology, ensuring environmental safety, dealing with various industrial problems which need basic knowledge.
• Also, parliament is not a forum which can make laws on administrative and technical details but it is more concerns with social issues and the rule of law.
• Therefore, it is though that it is better for the parliament to debate on the board topic or the main topic and leaves the rest detail for the fulfillment by the expert of that particular field. Thus, delegates authorities with extra skills, experience, and knowledge are more suitable for law making.

III. DECENTRALIZED DECISION MAKING:

• The local councils are more suited to make laws for their constituencies as:
• They better know the condition of their constituencies than any other and
• Can make better laws for their area.
• As it is very essential to know a person for whom we are making laws. The parliament makes the laws for board principle while its delegate handles the local principle.
• This separation of power helps in the smooth running of the legislature.

IV. EMERGIES:

• Delegated legislation allows for rapid allows for rapid action in case of an emergency but parliament take too much time in taking any decision. In some case, the parliament has not enough time to accurately make a piece of legislation and a quick and safety of a nation.
• For example, in the UK, the prevention of terrorism Act was created as delegated legislation and now this act has added a new prohibited group to the terrorism.
• Therefore, it is more appropriate for the delegate authorities to make legislature and deal with it.

V. ENABLES FLEXIBILITY:

• In delegated legislation, parliament makes law in broader skeletal form and the executive had to fill the minor details. So these minor details can be changed immediately without making any amendment in the parliament.
• Therefore, it is flexible and the legislation made by this can be best for the needs of modern public.

VI. EXPERIMENTAL:

• It allows in quick lawmaking. If a law made for some circumstances and it does not fulfill the condition for which it has made then it can be changed and a new law can be made at the place of the older one. And if this law gets fitted according to the situation then this law will prevail in that area. In this way, it is an advantage in the view of modern public.

LIMITATIONS

I. ESSENTIAL LEGISLATIVE CANNOT BE DELEGATED:

• Functions cannot be delegated, which consists of-
  • Choosing of the Legislative Policy and
  • Formally enacting that policy into a binding rule of conduct.
• Functions permitted are-
  • Delegation of ancillary or subordinate legislative functions or
  • Power to fill up the details.

Justice Cardozo famously stated, that the Legislature cannot delegate ‘uncanalized and uncontrolled power’, the power delegated must not be unconfined and vagrant, but must be canalized within banks that keep it from overflowing.

II. EXCESSIVE DELEGATION:

Whether any particular legislation suffers from excessive delegation has to be decided by courts having regard to the subject-matter, the scheme, and the provisions of the statute including its preamble, and the facts and circumstances in the background of which the statute is enacted.

III. NO RETROSPECTIVE OPERATION:

In absence of an express or implied power to that effect, delegated legislation, be it a rule, bye-law or a notification, cannot have retrospective effect.

IV. VERY SPECIFIC:

A power to tax or levy any fee cannot be inferred from mere generality of the powers conferred by the enabling enactment. Such power of imposition of tax or fee by Delegated Authority must be very specific and there is no scope of implied authority for imposition of such tax or fee.

V. PUBLISH A DRAFT:

One of the important conditions prescribed under section 23 of the General Clauses Act, 1897 is that the authority having power to make the rules or bye-laws shall, before making them, must publish a draft of the proposed rules or bye-laws for the information of person likely to be affected thereby.

VI. UNCONSTITUTIONAL:

Where the delegating statute itself is ultra vires to the Constitution of India, the rules made under such statute are also unconstitutional

ORIGIN AND DEVELOPMENT

Many reasons have contributed to this development. The role of the state has undergone a change over time. The lassie-fair state of the 19^th century has given place to the welfare state. Vast technological developments have taken place. This has enormously increased the work of government necessitating a mass of legislation. Consequently, legislatures are faced with a great load of work as they have on the anvil more bills than what they can conveniently dispose of. It developed due to and to serve the following:

I. PRESSURE UPON PARLIAMENTARY TIME

The horizons of state activists are expanding. The bulk of legislation is so great. It is not possible for the legislature to devote sufficient time to discuss all the matters in detail.

Therefore, legislature formulates the general policy-the skeleton and empowers the executive to fill in the details- thus giving flesh and blood to the skeleton so that it may live by issuing necessary rules, regulations, bye- laws etc.

Sir Cecil carr said, ‘delegated legislation is a growing child called upon to relieve the parent of the strain of overwork and capable of attending to minor matters, whole the parent manages the main business.

The Committee on Ministers powers rightly observed: “The truth is, that if parliament were not willing to delegate law making power, parliament would be unable to pass the kind and quality and legislation which modern public opinion requires.”

II. TECHNICALITY

Subject matter of legislation is technical in nature, time and then and so required assistance of experts. Members of parliament may be the best politicians but they are not expert to deal with highly technical matters. Here, the legislative power may be conferred on experts to deal with the technical problems .i.e. atomic energy, drugs, electricity etc.

III. COMPLEX MODERN ADMINISTRATION

The complexity of modern administration has become undoubtable. It continues to take up more responsibility when upraising the welfare of citizens such as looking after their health, education and employment, regulating trade, the employment, regulating trade, the industry and commerce along with the provision of other services.

Therefore, the complex nature of the modern state and the extension of the work of the state in socio-economic areas have made it of necessity to resolve to other methods of legislation and grant more powers to agencies in the required times.

It is of importance that a lot of powers be given to the administration in order for it to activate socio-economic policies for instant actions to be taken. The objective may not be achieved when it has been resolved to have the traditional legislative process.

HENRY VIII CLAUSE

Henry VIII clause is a provision under a parent legislation empowering the Executive to amend or repeal one or more statute by way of the latter’s enactment of delegated legislation. It is due to this liberating nature of Henry VIII clause for the executive that this clause has been an eye sore for the judiciary and other stakeholders on countries, including India.

The term ‘Henry VIII clause’ originates from the infamous King himself who in 1539 published a ‘statute of Proclamations’. This Statute granted King Henry the power to avoid legislation through Parliament. Instead, he had empowered himself to make statutory changes by public announcement.

These clauses currently exist to enable the UK government to use secondary legislation to amend primary legislation. In contrast to King Henry’s power-hunger motivations, such clauses are used today as a sensible means of avoiding the whole, rather lengthy Parliamentary approval process. Parliamentary scrutiny is an option which can be called upon if felt needed but will not become a necessary burden where ministers are more than qualified to make the right amendments independently.

Amidst the circumstances in India, the role of delegated legislation becomes more prominent. It is one of the most crucial topics under the Administrative law of any country, including India, to correctly identify the thin line that demarcates the divide between permissible and excessive delegated legislation. It is within this large issue of the permissible scope of delegated legislation, that the legality of the Henry VIII clause has been a bone of contention.

However, it could be argued from an orthodox, Dicey viewpoint that such clauses are further evidence of the erosion of parliamentary sovereignty. For sure only Parliament has ‘the right to make or unmake any law’.

DELEGATED LEGISLATION AND SUBORDINATE LEGISLATION

Throughout the 20^th century the amount of legislation which is enacted by the British Parliament has grown substantially. Increasingly Parliament itself does not have the time or the expertise to consider detailed legislative rules on the administration of matters and has delegated authority for the making of rules on the administration of matters to Ministers. The authority is conferred by the Act is then referred to as the parent or enabling Act. Such authority is sometimes called the ‘vires’ (the power). To say that an instrument is ‘ultra vires’ means that the powers conferred by the Act and are thus open to challenge.

There is no distinction between the term ‘subordinate legislation’ and that of ‘delegated legislation’. Which are used in the alternative by many legal text books. ‘Delegated legislation’ is often used to underline the principle the power to make and pass further legislation is delegated from the machinery of Government (with reading in both Houses of Parliament as for the parent Act), to specially appointment committed and other bodies who have expertise in the subject. Subordinate legislation is also referred to as secondary legislation, primarily legislation being that which is contained in Acts of Parliament (or statutes).

In Indian context, practice of empowering the government to modify the Act has:

• Modifications in an Act to be extended, which may be in enabling Act itself or so other Act, or
• Where “Legislation by reference is adopted”. It is a device where-
  • An Act or part of it is taken to be forming a part of another Act and
  • To make adopted Act fit into framework of adoptive Act, power is given to the executive to introduce necessary modifications in the former.

FORM OF SUBORDINATE LEGISLATION

Such subsidiary or subordinate legislation may take various forms, like-

• RULES: The expression according to the General Clauses Act, 1897, as a rule made in exercise of a power conferred by any enactment and will include a regulation made as a rule under any enactment.
• REGULATIONS: Definition as contained in the General Clauses cat, 1897, are somewhat inferior to rules in that they are generally made by a subordinate authority like a Board or other statutory body functioning under a statute.

(as expressed in the definition of ‘rule’ or ‘regulation’ may be made as rule and then it partakes the character of a rule. “. Regulation’ and ‘rule’ are interchangeable words. When power to make delegated legislations is conferred on different authorities by the same Act, the words ‘rule’ and ‘regulations’ may be utilized to distinguish the source and to sub-ordinate the latter to former. But sometimes the same authorities may be authorized to make ‘rules’ in respect of certain matters and ‘regulation’ in respect of others’. )

• BYE-LAWS: The expression “by-laws” is generally used when a body like the municipal corporation is authorized to deal with specified matters. It necessarily involves restriction of liberty of action by persons who come under its operation as to act which but for the bye-law they would be free to do. Further, if validly made, it has the force of law within the sphere of its legitimate operation. 
• ORDERS: While rule is generally in character and indiscriminate in its application, an order, broadly speaking is specific and may be limited in its applications. An order having the authority of law behind it may be recognized by courts, unless the order prescribes a rule of conduct which persons living in the community have to obey, there can be no question of its enforceability by a court of law or other authority.
• NOTIFICATIONS: “Notify means make known and, in case of public matters, it generally means the some persons whose duty it is to notify something, gives it in the manner prescribed and to persons entitled to receive it.
• SCHEMES: A “scheme”, may be of 2 kinds.
  • It may embody subordinate legislation containing a body of rules binding on person with whom the rules are concerned.
  • May be purely, executive in character and does not contain any rules of conduct for anybody to follow.
• PROCLAMATION: A “proclamation” is the act of proclaiming, a declaration or notice by public outcry such as is given by criers or a public notice in writing given by a Sate or departmental official of some act done by the Government or to be done by the people.
• RESOLUTION: A “resolution” passed by parliament is the form in which that body expresses an opinion. It is generally a suggestion or declaration:
  • Concurred in by both houses, where there are 2 houses or
  • Passed by one house if there be one and not submitted to the executive for approval.

The device of delegating power to frame the rules and regulations is employed for diverse purposes like-

• Commencement of Act
• Extension and application of Act
• Temporary extension of Acts
• Extension of Act to objects not ordinals covered
• Dispensing and suspending of Acts
• Delegation of Power to alter an Act

DELEGATED LEGISLATION AND EXECUTIVE LEGISLATION

• Law enacted either by the executive branch of government or by executive agencies but does not include, the law of municipal, territorial or local authorities.
• The discretion conferred on the executive by way of delegated legislation is much wider.

DELEGATED LEGISLATION AND CONDITIONAL OR CONTINGENT LEGISLATION

In dealing with the topic of delegated or subordinate legislation, we will have to leave out of consideration what has come to be known as conditional legislation. In conditional legislation, according to the view expressed by the court, there is no delegation of legislative power. The law is complete in all its aspects, but discretion is given to an outside authority to take certain steps in relation thereto. It is the convenient and most common form of delegation of legislative power.

India has inherited it from Parliamentary legislation in the United Kingdom, to execute from the body of the Act such detail as could very well be left to an executive agency to fill in.

DISTINCTION BETWEEN CONDITIONAL AND DELEGATED LEGISLATION

• True distinction would be between the delegations of power to make the law necessarily involves:
  • Discretion as to which the law should be and the conferment of an authority or
  • Discretion as to the execution of the law to be exercised under and in pursuance of the law.
• Objections may be raised in the case of the conditional legislation; the delegated legislation is generally unobjectionable.
• In re Article 143, Constitution of India, is that-
  • “When an appropriate Legislature enacts a law and authorizes an outside authority to bring it into force in such areas or at such time as it may decide that is conditional legislation and not delegated legislation”.
• Case: Vasu Dev Singh V India and others

Supreme Court observed, “The distinction between conditional legislation and delegated legislation is clear and unambiguous” as

‘Conditional legislation-

• Delegate has to apply the law to an area or to determine the time and manner of carrying it into effect or at such time as it decides or to understand the rule of legislation.
• Legislation, in such case makes the law, which is complete in all respectable but the same is not brought into operation immediately.

Delegated legislation-

• Involves delegation of rule making power of legislation and authorities an executive authority to bring in forces such an area by reason thereof.
• Such power to make rules or regulations, however, must be exercise within the four corners of the Act.
• Thus, it is a device which has been fashioned by the legislature to be exercised in the manner laid down in the legislation itself.’

CONCLUSION

Delegated or subordinate legislation means rules of law made under the skilled person of the Act of Parliament. In spite of the fact the lawmaking is within the capacity of the lawmaking body, it might, by resolution, delegate its capacity to different bodies or people. The resolution which delegates such power is known as the Enabling Act the council sets out the wide rules and nitty-gritty principles are instituted by the delegated authority.

BIBLIOGRAPHY

Delegated Legislation Development and Parliamentary Control by Amit Kumar.

Subordinate or delegated legislation by TK Vishwanathan

What is Henry VIII clause? campionssolicitors.co.uk

CALQ (2017) Vol. 3.3 – THE HENRY CLAUSE VIII CLAUSE: NEED TO CHANGE THE COLOUR OF OUR SHADES by Priya Garg and Amrita Gosh

Note: Constitutionality and control of delegated legislation, covered in DELEGATED LEGISLATION Part-2.