DELEGATED

LEGISLATION

“Lecture 4”
 INTRODUCTION

• It is all known about the cardinal principle of

separation of powers, that the functions of the
executive is to administer the law enacted by the
legislature, and in its strict application, the legislative
power must be exercised exclusively by the legislature.
 CONT….

• But as we have discussed before, except for pure

administrative undertaking, the executive performs a
number of legislative and judicial functions. It has been
rightly observed that even in USA where the doctrine
of delegated legislation has not been accepted in
principles, since in practice, the legislature has
entrusted the legislative power to the executive.
 CONT…

• Therefore, in many cases, the statutes passed by the

parliament laydown a basic framework for the law,
with creation of the detailed rules delegated to the
government departments, local authority or public and
national bodies.
 DEFINITION OF DELEGATED
LEGISLATION

• There is no fit for all definition of delegated legislation

which can be universally applicable. As a result various
experts have comes out with different expression to
try to show what the concept meant.
 CONT…

• MUKHERJEE, J rightly says that “Delegated

legislation is an expression which cover a multitude of
confusion. It is an excuse for the legislatures, a shield
for administrators and a provocation of constitutional
Jurists”
 CONT…

• HALSBARY’S LAW OF ENGLAND 4TH ED, VOL

44. PP 981-84 it defines the concept as: “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”.
 CONT…

• JUSTICE C. K. THAKKER (in his book

Administrative law, 1985) “When the function of
legislation is entrusted to the organ other than
legislature by the legislature itself, the legislation made
by such organ is called delegated legislation”.
 CONT…

• Jain and Jain (Principle of administrative law, 1986. P.

26) According to him the term delegated legislation
means two issues:
1. Exercise by subordinate agency of the legislative
power delegated to it by legislature.
 CONT…

2. The subsidiary rules themselves which are made by the

subordinate authority in pursuance of the power conferred
on it by the legislature.
• The term delegated legislation as in the second meaning can
be used interchangeable with other terms such as
subordinate laws, subsidiary legislation, child legislation
etc.
 POWER TO MAKE DELEGATED
LAGISLATION

• An ordinary member of a public cannot decide on a

whim to make delegated legislation, but usually the Act
of the parliament is required to do so, as it is always
known as enabling Act which gives power to the
branch of the state.
 CONT…

• The Act can be quit specific, giving a limited power to

make legislation on a very narrow issue, or it can be
general giving a very wide range of delegated
legislation to be made.
 REASONS FOR DEVELOPMENT OF
DELEGATED LEGISLATION
• Insufficient Parliamentary Time. The Parliament
does not have the time to debate every rule in detail,
necessary for efficient government functioning.
• Technicality of subject matter. Modern legislation
often need to include details and technical provisions.
MPs usually does not have technical knowledge
required.
 CONT…

• Therefore, delegated legislation can use experts who

are familiar with relevant faculties. E.g atomic energy,
drug issues, aviation etc.
• Needs for local knowledge. Local bye-laws in
particular can only be made efficiently with awareness
of locality.
 CONT…

• Flexibility. Statutes evolves a cumbersome procedures

for enactment and can only be revoked or amended by
another statutes. Delegated legislation can be put into
action quickly, and easy to revoke or amend if so
needed.
 CONT…

• Speed. It allows rules to be made more quickly than

they could by parliament. Parliament does not sit all the
time, and its procedure is slow and cumbersome.
Delegated legislation has to be made in response to
emergence and urgent problems .
 CONT…

• Future needs. Parliament cannot hope to foresee very

problem that might arise as a result of a statute
incompleteness in some special area such as health
provision or welfare benefit. Delegated legislation can
complement when such demand arise.
FUNCTIONS WHICH CAN BE DELEGATED
(PERMISSIBLE DELEGATION)
• NEXT SESSION
• Commencement of the law. Most of statute contain
appointed clause or day which empower the
government to choose enforcement day of the Act. In
such case the operation of the statute depends upon the
decision of the government.
 CONT…

• In this behalf Sir CECIL CARR has once commented in his

book (concerning administrative law, 1941. P. 43) that:
• “Legislature provide the gun and prescribe the target, but
leave to the executive the task of pressing the trigger”.
 CONT…

• Inclusion clause. Apart from specified scope, some Act

empower the government to extend the provision of the
Act to other territories. E . g section 186 of the Indian
Railway Act 1986, authorise the government to apply
the provision beyond other transport services .
 CONT…

• Exclusion clause. Some statutes empower the government

to exempt from their operation certain person, territories,
commodities etc. E .g tax Acts exempt some of
commodities from being taxed.
• Framing the rules. The delegation is imposed to the
executive to formulate the rules, regulations, bye laws etc.
 CONT…

• Modification. Sometime statutes authorise the executive to

make modification in the existing statutes. E.g in our case,
Attorney General has the mandate to make modification or
in case of corrigendum.
• Prescribing punishment. In some cases the legislature
delegate power to the executive to impose punishment
subject to the minimum or maximum fixed ceiling.
 FUNCTIONS WHICH CANNOT BE DELEGATED
(IMPERMISSIBLE DELEGATION)

• Repeal of the law. Power to repeal the law is essentially a

legislative function.
• Modification. Power to modify the Act in its important aspect
is essential legislative function and it cannot be delegated.
• Imposition of offence and penalty. In the modern law this
has not been the case though.
 CONT…

• Retrospective operation of law. Parliament can enact

the law prospectively or retrospectively subject to the
provisions of the constitution. But this power cannot be
delegated to the executive.
• Imposition of tax. Executive cannot be empowered to
impose tax but can be authorised to determine the rate.
 FORMS OF DELEGATED
LEGISLATIONS
• There are three main forms of delegated legislation.
• Statutory instruments. These are made by
government departments. Such as regulations.
• Bye-laws. These are made by local authorities, public
had national bodies. Bye-laws has to be approved by
the central government.
 CONT…

• 3.Order in council or Orders. These are made by

government in time of emergence. They are drafted by
the relevant government department. In England they
must be approved by the Privy Council and signed by
the Queen. In our case approved by BLM and signed
by responsible minister.
 CONTROL OF DELEGATED
LEGISLATION

• Because it is not directly made by elected representative,

delegated legislation is subject to the number of controls
which are designed to ensure that the power is not abused.
• Consultation. Those who make delegated legislation always
consult expert within the relevant field and stakeholders.
 CONT…
• Publication. All delegated legislation should be published and available
for public scrutiny.
• Supervision by the parliament.
• i.) Revocation. Parliament can revoke delegated legislation itself or
pass a statute of the same subject.
• ii. The affirmative resolution procedure. This may require parliament
to vote its approval for proposed delegated legislation. (Lay on the
table).
 CONT…
• iii.) The negative resolution procedure. Delegated legislation is put
before the parliament within the specified time to annul if so desired.
• iv.) Committee supervision. Parliamentary committee supervise new
delegated legislation. E,g in Uk they have a joint committee on statutory
instruments to watch over and report to both houses in case of any special
consideration.
• v.) Question from MPs. This can happen during Ministerial question time
or can be raised during debate.
 CONT…
• Control by the court. This is a court process of JUDICIAL REVIEW of
which administrative decision is reviewed by the court if the same is
substantial and procedural correct. However, we will be dealing with this
aspect in detais as a separate topic in the coming session.
• Confirmation by government Minister. E .g Zanzibar contractor
registration by laws. The Minister may check the validity of power to make
bye laws, that consultation process was undertaken, no duplication with
existing statute, if it is within the scope and it is not in conflict with
government policy.
 CRITIC ARAISED OVER DELEGATED
LEGISLATION

• Lack of democratic involvement. Delegated

legislation is usually made by civil servant rather than
elected representatives (politician).
• Overuse. It has been argued that there is too much
delegated legislation and problem still exist, though it
was intended to flesh out technical details.
 CONT…

• Sub-delegation. Sometime delegated legislation is

made by person other than those who had been given a
power to do so.
• Lack of proper control. Despite the number of control
measures, yet its practicability is difficult. All control
measure has its short coming.
 QUESTIONS FOR DISCUSSION

1. Critically discuss to what extent parliamentary mechanisms are an

ideal tools for delegated legislation control.

2. The effect of delegated legislation has on the daily life is significant

greater than that of primary legislation (Act of parliament). In your
view do its benefit out weight its weakness?

3. What are the advantages and disadvantages of delegated legislation?