“The control over delegated legislation is the most critical aspect of Administrative law as otherwise subordinate can easily be drafted arbitrarily”. Discus
There has been delegated legislation in England since the fourteenth century. In modern times, in all the countries, there has been a steady increase in the use of delegated legislation. At present, on almost all the countries, the technique of delegated legislation is restored to and some legislative powers are delegated by the legislature to the executive. At the same time, there is inherent danger of abuse of the said power of the executive authorities. Delegated legislation has become inevitable but the question of control has become crucial.
2 Delegated legislation
Delegated legislation (also referred to as secondary legislation or subordinate legislation or subsidiary legislation) is law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of that primary legislation. It is law made by a person or body other than the legislature but with the legislature’s authority. Often, a legislature passes statutes that set out broad outlines and principles, and delegates authority to an executive branch official to issue delegated legislation that flesh out the details (substantive regulations) and provide procedures for implementing the substantive provisions of the statute and substantive regulations (procedural regulations). Delegated legislation can also be changed faster than primary legislation so legislatures can delegate issues that may need to be fine-tuned through experience.
Under section 15(1) of the Constitution Act 1986, Parliament has full power to make laws. Parliament usually exercises this power to pass primary legislation (that is, Acts of Parliament). However, Parliament also has the power to confer its law-making power on another person or body, thus enabling that person or body to make laws. This process is the delegation of Parliament’s legislative power, and the resulting laws are known as delegated legislation. Unlike Parliament, which has unlimited powers, the delegated powers are limited.
In accordance with the above concepts we can understand that, Delegated legislation is a process of giving authority to some entity other than the primary legislative body to enact and execute laws. This gives the delegated authority tremendous amount of power without the usual process of selecting a democratic representative by the people.
For example: In Bangladesh, to handle law and order situation some power has been delegated to R.A.B under the authority of home minister. Other legislatures don’t have direct control over R.A.B force. This law and order force is accountable to the home minister.
3 Types of delegated legislation
The following are the three main types of delegated legislation:
3.1 By Laws:
They are made by Local Authorities to deal with matters within their particular locality3.
3.2 Statutory Instruments:
These are made by Government Ministers and they insert the detail to Acts of Parliament. Statutory Instruments make up the majority of delegated legislation that is made. Around 3,000 Statutory Instruments are issued each year
3.3 Orders in Council:
They are made by the Queen on the advice of the Government and are usually made when Parliament is not sitting. They can be used by the Government in emergency situations3.
4 Necessity of delegated legislation
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.
· Delegating legislation allows law to be made more quickly than 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.
· MPs do not usually have the technical knowledge/expertise required in for example drawing up laws on controlling technology, ensuring environmental safety, and dealing with different industrial problems or operating complex taxation schemes whereas delegated legislation can use experts who are familiar with the relevant areas.
· 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.
5 Controls of Delegated legislation
5.1 General control methods
The creators consult experts in the relevant field; for example, a SI on road traffic law may be referred to the AA. The enabling Act may make such consultation compulsory.
All DL is published, therefore is available for public scrutiny.
5.2 Parliamentary Control
Parliament has initial control over statutory instruments as it passes an enabling Act, which gives other bodies or individuals the power to make rules and regulations. Thus, Parliament is able to limit the powers of those creating delegated legislation, and set out specific procedures for bringing statutory instruments into force, for example in the Eynesbury Mushroom case (1972), in which the Minister for Labour had to consult ‘any organization appearing to him to be representative of substantial numbers of employers engaging in the activity concerned’ and the fact that he didn’t consult the Mushroom Growers’ Association, meant that his order that established a training board, was void against mushroom growers. This is also demonstrated in R v Home Secretary, ex parte Fire Brigades Union (1995), which decided that changes the Home Secretary made to the Criminal Injuries Compensation scheme were beyond the power he was given by the enabling act, the Criminal Justice Act 1988, this case decided that any delegated legislation which is ultra vires, beyond its powers, is void.
Thus, Parliament initially has the ability to limit the powers of bodies and individuals creating delegated legislation, and set down procedure to be followed in their creation; and if those creating the delegated legislation do go beyond their powers, then the legislation will be void.
However, often enabling acts will grant very wide powers to bodies or individuals creating delegated legislation, such as section 8 of the Access to Justice Act 1999, which sets out criteria for the Community Legal Service to consider when offering public funding, but also allows the criteria to include ‘such other factors as the Lord Chancellor may by order require the Commission to consider’, thus the Lord Chancellor was given the power to add to the criteria without referring it to Parliament and with little real control over the additions he could make.
5.2.1 Affirmative resolutions
Another type of control, which some statutory instruments may be subject to, if stated in the enabling act, is affirmative resolutions. This procedure means that statutory instruments must be approved by Parliament before they can become law. This means that Parliament has more control over a piece of delegated legislation, being able to debate it and vote upon whether it should become law. This guarantees that the statutory instrument is brought to Parliament’s attention and seems more democratic, as it allows those democratically elected by the people to decide whether a piece of delegated legislation becomes law.
However, time is needed for parliamentary debate on the delegated legislation, and this is scarce, lack of time for parliament to introduce all the necessary legislation being one of the original reasons why delegated legislation is considered necessary. Also, although this could be seen as the most active example of control over delegated legislation, only a small number of statutory instruments are subject to affirmative resolution and thus this strength of control.
5.2.2 Negative resolution
Negative resolution is the most common form of control and most other statutory instruments will be subject to it. It means that the statutory instrument will become law within a specified time, of normally 40 days, unless it is rejected by Parliament. Any member of Parliament may put down a motion to annul a piece of delegated legislation within that time, and if either the House of Lords or House of Commons passes an annulment motion then the delegated legislation does not become law.
Negative resolution allows parliament to retain control over whether a piece of legislation should become law, but only necessitates debate if members of Parliament do not agree with it. Thus it allows Parliament control without wasting parliamentary time as positive resolutions may do.
However, where positive resolutions could be seen as more active control over delegated legislation, negative resolutions could be described as a more passive process, with delegated legislation becoming law without any parliamentary intervention or a vote in parliament. Also, although any member of parliament has the right to put down a motion to annul a piece of delegated legislation, in practice motions from backbenchers may not be dealt with, although one from the Official Opposition is almost certain to be, and thus not all opinions and uncertainties members of Parliament may have, regarding a piece of delegated legislation, are considered.
Another effective check on delegated legislation is the Joint Select Committee on Statutory Instruments, or the Scrutiny Committee. The Scrutiny Committee reviews all statutory instruments and draws the attention of parliament to certain points, if the statutory instrument; imposes a tax, is made under an Act which states it cannot be challenged in court, is designed to have retrospective effect, may be beyond powers or an unusual use of them, or is badly drafted or in need of clarification.
The Scrutiny Committee is very active in its control and thoroughly reviews all statutory instruments in a way it would be impossible for parliament to do, looking at all of the technical details within the piece of delegated legislation.
However the Scrutiny Committee does not look at the overall policy the statutory instrument is implementing has a large volume of statutory instruments to deal with, meaning it can be difficult to fully review all of them and most importantly has very limited powers. The Scrutiny Committee cannot make any alterations to statutory instruments, it can only report its findings back to the Houses of Parliament, and they are not always taken into consideration.
A final control over delegated legislation is control by the courts; Delegated legislation is also subject to control by the courts whose judges can declare a piece of delegated legislation to be ultra vires. Ultra vires means ‘beyond powers’, so the court would be saying that a piece of delegated legislation went beyond the powers granted by Parliament within the enabling Act. If the court does this, then the delegated legislation in question would be void and not effective.There are two types of ultra vires:
This is where the enabling Act sets out the procedural rules to be followed by the body which has been given the delegated power. The court can find the delegated legislation to be ultra vires and void if these rules were not followed.
In the Aylesbury Mushroom case (1972) Agricultural Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd (1972) 1 All ER 280 delegated legislation required the Minister of Labour to consult ‘any organisation … appearing to him to be representative of substantial numbers of employers engaging in the activity concerned’ about the establishment of a training board. The Minister failed to consult the Mushroom Growers’ Association which represented about 85 per cent of all mushroom growers. Therefore, the delegated legislation was declared to be ultra vires on procedural grounds.
This is where the delegated legislation goes beyond what Parliament intended.
In R v Secretary of State for Education and Employment, ex parte National Union of Teachers(2000) QBD, the High Court determined that an SI concerning teachers’ pay and appraisal arrangements went beyond the powers provided under the Education Act 1996. Therefore, the delegated legislation was declared to be ultra vires on substantive grounds.
As delegated legislation is not made by Parliament, and therefore not those democratically elected by the public to be responsible for legislation, apart from delegated legislation created by elected local authorities, it is important to have sufficient controls. Sub-delegation is a problem with delegated legislation, as the creation of the legislation is delegated further, such as by a government minister, who was originally given the power to make delegated legislation by the enabling act, to civil servants within the department. This means power is taken even further from those elected and continues to make delegated legislation appear undemocratic and in need of strict controls.
Another point to consider is that delegated legislation is generally made privately, rather than being debated as parliamentary legislation is, and thus, although the enabling act may require some public consultation, delegated legislation could be seen as much less open and publicized than statutes. Also, although delegated legislation is published, the vast quantities produced and complex wording mean delegated legislation is criticized for being difficult for people to fully understand, and therefore may not be very open to public scrutiny or involvement in its creation.
Thus the main reason that controls over delegated legislation are necessary is because it is not created by Parliament and often not even those given the responsibility by Parliament, but is further sub-delegated. This means that the public are not able to elect those making legislation, as they are with Parliament, and thus those making delegated legislation are not accountable to the people, so delegated legislation can seem undemocratic and a particular problem if it is used for more important policies, and not simply administrative rules.
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· DPP V Hutchinson (1990)
· Boddington V British Transport Police
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