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Adv. Vijay Jayshwal
Kathmandu University School of Law
Delegated Legislation
12/27/2019
Delegated
Legislation
 There emerged one of the first ‘consensual’
subjugations of power under the rule of law,
based on which Parliament later emerged from
the consent of magnates to never-ending
burdens.
 A long recognised principle of the parliamentary
law is that an Act of Parliament should be
amended only by another Act.
 Whoever has the competence to enact the law,
can also abrogate it.
 But a Henry VIII clause acts differently – it
delegates powers further within the meaning of
roman cuius est dare, eius est dispondere (who
has the right to give, also has the right to make
rules about ways in which given can be spread
12/27/2019
 Delegated (or Subordinate or Subsidiary) Legislation refers
to those laws made by persons or bodies to whom
parliament has delegated law-making authority.
 Where Acts are made by Parliament, a Principal Act may
make provision for Subsidiary Legislation to be made, and
will specify who has the power to do so under that Act
 Delegated Legislation can only exist in relation to an
enabling or parent Act
 Delegated Legislation contains the many administrative
details necessary to ensure that the provisions of the Act
will operate successfully. It may be administered by
Government Departments, Local Councils or Courts.
 Regulations and Statutory Rules are the most common
forms of Delegated Legislation. They are made by the
Executive or a Minister and apply to the general
population.
 By-laws, and sometimes Ordinances, are made by a Local
Government Authority and apply to the people who live in
that area. Rules commonly describe procedure to be12/27/2019
12/27/2019
 The delegation of legislative power is an old
concern, older than the Constitution or even than
the separation-of-powers principle. According to
Locke, one of the four unbreachable boundaries
confining legislative authority was that:
 The Legislative cannot transfer the Power of
Making Laws to any other hands. For it being but a
delegated Power from the People, they, who have
it, cannot pass it over to others .... And when the
people have said, We will submit to rules, and be
governed by Laws made by such Men, and in
such Forms, no Body else can say other Men shall
make Laws for them; nor can the people be bound
by any Laws but such as are Enacted by those,
whom they have Chosen, and Authorised to make
Laws for them. The power of the Legislative being
derived from the People by a positive voluntary
Grant and Institution, can be no other, than what
the positive Grant conveyed, which being only to
Areas of Delegated Legislation
12/27/2019
1. Procedure (court rules)
2. Mining and energy
3. Native title
4. Family law
5. Criminal law
6. Food standards
7. Civil aviation
8. Corporations
9. Superannuation
10. Taxation
11. Migration
Note: It differs with the nature of law and also legal system.
All the delegation subject matters must be specific in
organic Act. The constitutionality and legality must be
checked in order to determine the subject of delegated
legislation and also the concern agencies.
Rationale
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 Practical necessity is perhaps the overriding
justification for delegated legislation. The ‘modern
state depends on reams of delegated legislation
'and therefore the ability of a legislature to
empower others to make legislation has been
described as ‘an essential adjunct to the practice
of government’.
 The delegation of legislative power is ‘generally
considered to be both legitimate and desirable’ in
three situations:-
1. To save pressure on parliamentary time;
2. When the legislation would be too technical or
detailed; and
3. Where the legislation must deal with rapidly
12/27/2019
(i) Lack of parliamentary time
(ii) Speed the procedure of law making in
parliament
(iii) Technicality of subject matter
(iv) Flexibility
(v) Emergency of the state
(vi) Complexity of modern administration
(vii) Need for regulation and control of financial
enterprises
(viii) What to do is determined by a legislation on
principle matter while how to do it determined
by legislation in procedural matter.
Types of Delegated Legislation
12/27/2019
 Delegated Legislation is a term which covers the vast
amount of Legislation made by Government Agencies and
the Governor-General under authority of Acts of
Parliaments, which delegate this power to agencies. This
type of Legislation is also known as Subordinate
Legislation.
 Within the broad area of Delegated Legislation the
following more specific terms are sometimes used:
 There are five basis for classification:-
1. Title-Based Classification
2. Discretion-Based Classification
3. Purpose-Based Classification
4. Authority Based Classification
5. Nature-Based Classification
 Regulation:- The most common form of delegated
legislation. Used for legislation of general application
emanating from a government department.
12/27/2019
 Rule : Legislation specifying procedural
formalities, eg court procedures such as the High
Court Rules. Published in the Statutory Rules.
 Ordinance : Primary legislation of non self
governing territories, made by a federal
government department to apply to a particular
territory. Also used for the legislation of some
State local government bodies.
 By-law :Made by a statutory corporation having
effect only within the area of responsibility of the
authority. Also used for the legislation of some
State local government bodies
 There is also a range of other delegated
legislation which includes: Decisions,
Delegated Legislation Making Institutions and
Authorities
12/27/2019
 Council of Ministers
 Public Bodies or Corporation
 State Government and Department
 Local government
 Judicial bodies
 Government departments
 Legislature
 Others….
Control of Delegated Legislation
12/27/2019
 There are controls in place in relation to
delegated legislation to ensure that those who
make law under it are doing it in an appropriate
manner.
 Parliament exercises control over delegated
legislation in that when the Act of Parliament is
created, Parliament stipulate in the Act of
Parliament the parameters with regard to
delegated legislation.
 There are scrutiny committees which consider
delegated legislation within a Bill as it passes
through the Houses of Parliament.
 Delegated legislation is also subject to control
through the Court. A piece of delegated legislation
12/27/2019
 If the delegated legislation goes beyond what
Parliament intended or where the procedural
rules to be followed in relation to the delegated
legislation have not been followed. Any Court
action which is brought challenging delegated
legislation is done through the means of Judicial
Review.
 If the Court finds that a piece of delegated
legislation is ultra vires then that legislation can
be declared void.
Constitutionality of Delegated
Legislation
12/27/2019
 Position in the USA: -
 Two phenomenon's operate in the USA these are:
1. Separation of Power.
2. “Delegatus non potest delegare”(Since congress was
itself a delegate, how can it delegate its power)
Position in England:
 In England the Parliament is Supreme , unhampered
by any constitutional limitations with wide legislative
powers on the executive.
 Parliament being supreme and it power to legislate
being unlimited, there is nothing to prevent Parliament
from delegating its legislative power to the executive
officers or other subordinate bodies. Sir Cecil Carr in
this "Delegated Legislation" quoted in the Report of
the Committee on Ministers' Powers, usually referred
to as the Donoughmore Committee, said :
12/27/2019
 "The first and by the far smallest part is made by the
Crown under what survives of the prerogative. The second
and weightiest part is made by the King in Parliament and
consists of what we call Acts of Parliament. The third and
bulkiest part is made by such persons or bodies as the
King in Parliament entrusts with legislative power."
 Delegated legislation has been divided in the
Donoughmore Committee's Report into two classes, (i)
normal and (ii) exceptional.
 The normal type is said to have two distinguishable
characteristics, one positive and the other negative.
 In the normal type of delegation the "positive characteristic
is that the limits of the delegated power are defined so
clearly by the enabling Act as to be made plainly known to
Parliament, to the executive and to the public and to be
readily enforceable by the judiciary."
12/27/2019
 The exceptional type of delegation has been
classified by the Donoughmore Committee under four
heads, namely:-
(i) power to legislate on matters of principle and even to
impose taxation;
(ii) power to amend Acts of Parliament, either the Act by
which the powers are delegated or other Acts
(nicknamed as Henry VIII clause);
(iii) power conferring so wide a discretion on a Minister,
that it is almost impossible to know what limit
Parliament did intend to impose;
(iv) instances where Parliament, without formally
abandoning its normal practice of limiting delegated
powers, has in effect done so by forbidding control of
the Courts.
12/27/2019
 Position in India
 Pre Independence:
 Queen v. Burah wherein the Privy Council had
validated only Conditional Legislation and
therefore as per its reasoning delegated
legislation is not permitted.
 The council of the Governor General of India for
making laws and regulations was an Act to
remove the Garo Hills from the jurisdiction of the
tribunals established under the General
Regulations and Acts passed by any legislature in
British India and provided that "no Act hereafter
passed by the Council of the Governor-General
for making laws and regulations shall be deemed
12/27/2019
 Post – Independence
 The Delhi Laws Act, 1912, giving power to the
Government to extend to Delhi and Ajmer-Marwar
with such restrictions and modifications as it
thought fit any law in force in any other part of
India, was held intra vires.
 The case also discussed the validity of the law
empowering the Government to extend to part C
States any law in force in a part A state and to
repeal existing laws.
 It was held ultra vires under article 143 of the
Constitution asking the Court's opinion on the
three questions submitted for its consideration
and report.
Judicial Control of Delegated
Legislation
12/27/2019
 On the ground of Ultra Vires- Substantive and
Procedural ultra Vires (Vires is Latin and is
defined as powers)
 On the ground of Constitutionality
 Its opposite, an act done under proper authority,
is intra vires ("within the powers"). Acts that
are intra vires may equivalently be termed "valid"
and those that are ultra vires "invalid".
Condition for Ultra Vires
12/27/2019
 Excess of the power conferred by the organic Act.
 Conflicting with the Enabling Act
 Conflict with the perceived procedure of the
Enabling Act or failure to comply procedure of the
Enabling Act
 Unreasonable, arbitrary and discriminatory
 If malafide intention
 Encroaches upon the right of the citizens derived
from the common law in the absence of an
express authority in the Enabling Act
 Conflicts with the terms of some other statutes.
12/27/2019

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Delegated Legislation

  • 1. Adv. Vijay Jayshwal Kathmandu University School of Law Delegated Legislation 12/27/2019
  • 2. Delegated Legislation  There emerged one of the first ‘consensual’ subjugations of power under the rule of law, based on which Parliament later emerged from the consent of magnates to never-ending burdens.  A long recognised principle of the parliamentary law is that an Act of Parliament should be amended only by another Act.  Whoever has the competence to enact the law, can also abrogate it.  But a Henry VIII clause acts differently – it delegates powers further within the meaning of roman cuius est dare, eius est dispondere (who has the right to give, also has the right to make rules about ways in which given can be spread 12/27/2019
  • 3.  Delegated (or Subordinate or Subsidiary) Legislation refers to those laws made by persons or bodies to whom parliament has delegated law-making authority.  Where Acts are made by Parliament, a Principal Act may make provision for Subsidiary Legislation to be made, and will specify who has the power to do so under that Act  Delegated Legislation can only exist in relation to an enabling or parent Act  Delegated Legislation contains the many administrative details necessary to ensure that the provisions of the Act will operate successfully. It may be administered by Government Departments, Local Councils or Courts.  Regulations and Statutory Rules are the most common forms of Delegated Legislation. They are made by the Executive or a Minister and apply to the general population.  By-laws, and sometimes Ordinances, are made by a Local Government Authority and apply to the people who live in that area. Rules commonly describe procedure to be12/27/2019
  • 4. 12/27/2019  The delegation of legislative power is an old concern, older than the Constitution or even than the separation-of-powers principle. According to Locke, one of the four unbreachable boundaries confining legislative authority was that:  The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others .... And when the people have said, We will submit to rules, and be governed by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to
  • 5. Areas of Delegated Legislation 12/27/2019 1. Procedure (court rules) 2. Mining and energy 3. Native title 4. Family law 5. Criminal law 6. Food standards 7. Civil aviation 8. Corporations 9. Superannuation 10. Taxation 11. Migration Note: It differs with the nature of law and also legal system. All the delegation subject matters must be specific in organic Act. The constitutionality and legality must be checked in order to determine the subject of delegated legislation and also the concern agencies.
  • 6. Rationale 12/27/2019  Practical necessity is perhaps the overriding justification for delegated legislation. The ‘modern state depends on reams of delegated legislation 'and therefore the ability of a legislature to empower others to make legislation has been described as ‘an essential adjunct to the practice of government’.  The delegation of legislative power is ‘generally considered to be both legitimate and desirable’ in three situations:- 1. To save pressure on parliamentary time; 2. When the legislation would be too technical or detailed; and 3. Where the legislation must deal with rapidly
  • 7. 12/27/2019 (i) Lack of parliamentary time (ii) Speed the procedure of law making in parliament (iii) Technicality of subject matter (iv) Flexibility (v) Emergency of the state (vi) Complexity of modern administration (vii) Need for regulation and control of financial enterprises (viii) What to do is determined by a legislation on principle matter while how to do it determined by legislation in procedural matter.
  • 8. Types of Delegated Legislation 12/27/2019  Delegated Legislation is a term which covers the vast amount of Legislation made by Government Agencies and the Governor-General under authority of Acts of Parliaments, which delegate this power to agencies. This type of Legislation is also known as Subordinate Legislation.  Within the broad area of Delegated Legislation the following more specific terms are sometimes used:  There are five basis for classification:- 1. Title-Based Classification 2. Discretion-Based Classification 3. Purpose-Based Classification 4. Authority Based Classification 5. Nature-Based Classification  Regulation:- The most common form of delegated legislation. Used for legislation of general application emanating from a government department.
  • 9. 12/27/2019  Rule : Legislation specifying procedural formalities, eg court procedures such as the High Court Rules. Published in the Statutory Rules.  Ordinance : Primary legislation of non self governing territories, made by a federal government department to apply to a particular territory. Also used for the legislation of some State local government bodies.  By-law :Made by a statutory corporation having effect only within the area of responsibility of the authority. Also used for the legislation of some State local government bodies  There is also a range of other delegated legislation which includes: Decisions,
  • 10. Delegated Legislation Making Institutions and Authorities 12/27/2019  Council of Ministers  Public Bodies or Corporation  State Government and Department  Local government  Judicial bodies  Government departments  Legislature  Others….
  • 11. Control of Delegated Legislation 12/27/2019  There are controls in place in relation to delegated legislation to ensure that those who make law under it are doing it in an appropriate manner.  Parliament exercises control over delegated legislation in that when the Act of Parliament is created, Parliament stipulate in the Act of Parliament the parameters with regard to delegated legislation.  There are scrutiny committees which consider delegated legislation within a Bill as it passes through the Houses of Parliament.  Delegated legislation is also subject to control through the Court. A piece of delegated legislation
  • 12. 12/27/2019  If the delegated legislation goes beyond what Parliament intended or where the procedural rules to be followed in relation to the delegated legislation have not been followed. Any Court action which is brought challenging delegated legislation is done through the means of Judicial Review.  If the Court finds that a piece of delegated legislation is ultra vires then that legislation can be declared void.
  • 13. Constitutionality of Delegated Legislation 12/27/2019  Position in the USA: -  Two phenomenon's operate in the USA these are: 1. Separation of Power. 2. “Delegatus non potest delegare”(Since congress was itself a delegate, how can it delegate its power) Position in England:  In England the Parliament is Supreme , unhampered by any constitutional limitations with wide legislative powers on the executive.  Parliament being supreme and it power to legislate being unlimited, there is nothing to prevent Parliament from delegating its legislative power to the executive officers or other subordinate bodies. Sir Cecil Carr in this "Delegated Legislation" quoted in the Report of the Committee on Ministers' Powers, usually referred to as the Donoughmore Committee, said :
  • 14. 12/27/2019  "The first and by the far smallest part is made by the Crown under what survives of the prerogative. The second and weightiest part is made by the King in Parliament and consists of what we call Acts of Parliament. The third and bulkiest part is made by such persons or bodies as the King in Parliament entrusts with legislative power."  Delegated legislation has been divided in the Donoughmore Committee's Report into two classes, (i) normal and (ii) exceptional.  The normal type is said to have two distinguishable characteristics, one positive and the other negative.  In the normal type of delegation the "positive characteristic is that the limits of the delegated power are defined so clearly by the enabling Act as to be made plainly known to Parliament, to the executive and to the public and to be readily enforceable by the judiciary."
  • 15. 12/27/2019  The exceptional type of delegation has been classified by the Donoughmore Committee under four heads, namely:- (i) power to legislate on matters of principle and even to impose taxation; (ii) power to amend Acts of Parliament, either the Act by which the powers are delegated or other Acts (nicknamed as Henry VIII clause); (iii) power conferring so wide a discretion on a Minister, that it is almost impossible to know what limit Parliament did intend to impose; (iv) instances where Parliament, without formally abandoning its normal practice of limiting delegated powers, has in effect done so by forbidding control of the Courts.
  • 16. 12/27/2019  Position in India  Pre Independence:  Queen v. Burah wherein the Privy Council had validated only Conditional Legislation and therefore as per its reasoning delegated legislation is not permitted.  The council of the Governor General of India for making laws and regulations was an Act to remove the Garo Hills from the jurisdiction of the tribunals established under the General Regulations and Acts passed by any legislature in British India and provided that "no Act hereafter passed by the Council of the Governor-General for making laws and regulations shall be deemed
  • 17. 12/27/2019  Post – Independence  The Delhi Laws Act, 1912, giving power to the Government to extend to Delhi and Ajmer-Marwar with such restrictions and modifications as it thought fit any law in force in any other part of India, was held intra vires.  The case also discussed the validity of the law empowering the Government to extend to part C States any law in force in a part A state and to repeal existing laws.  It was held ultra vires under article 143 of the Constitution asking the Court's opinion on the three questions submitted for its consideration and report.
  • 18. Judicial Control of Delegated Legislation 12/27/2019  On the ground of Ultra Vires- Substantive and Procedural ultra Vires (Vires is Latin and is defined as powers)  On the ground of Constitutionality  Its opposite, an act done under proper authority, is intra vires ("within the powers"). Acts that are intra vires may equivalently be termed "valid" and those that are ultra vires "invalid".
  • 19. Condition for Ultra Vires 12/27/2019  Excess of the power conferred by the organic Act.  Conflicting with the Enabling Act  Conflict with the perceived procedure of the Enabling Act or failure to comply procedure of the Enabling Act  Unreasonable, arbitrary and discriminatory  If malafide intention  Encroaches upon the right of the citizens derived from the common law in the absence of an express authority in the Enabling Act  Conflicts with the terms of some other statutes.