Legislation and Delegated Legislations are the most common topics for the law students in Bangladesh. In Most of the cases these topics are included under the syllabus of Jurisprudence and Administrative Law.

1. LAW 101-Jurisprudence-I
Topic: Legislation and Delegated Legislation
Dr. Md. Nayem Alimul Hyder
Associate Professor & Head
Department of Law and Justice
North East University Bangladesh

2. Legislation
Legislation is law which has been promulgated (or "enacted") by
a legislature or other governing body or the process of making
it. Before an item of legislation becomes law it may be known
as a bill, and may be broadly referred to as "legislation", while
it remains under consideration to distinguish it from other
business. Legislation can have many purposes: to regulate, to
authorize, to outlaw, to provide (funds), to sanction, to grant,
to declare or to restrict. It may be contrasted with a non-
legislative act which is adopted by an executive or
administrative body under the authority of a legislative act or
for implementing a legislative act.

3. Cont.
 Legislation is regarded as one of the three main
functions of government, which are often distinguished
under the doctrine of the separation of powers. Those
who have the formal power to create legislation are
known as legislators; a judicial branch of government
will have the formal power to interpret legislation (see
statutory interpretation); the executive branch of
government can act only within the powers and limits
set by the law, which is the instrument by which the
fundamental powers of government are established.

4. Legislation Process in Bangladesh

5. 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.

6. Cont.
 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.

7. difference between primary and
secondary legislation
 Primary legislation is an Act that has been
passed by the Parliament.
Secondary legislation can make small changes to
an Act. The Act must say what changes can be
made to it by secondary legislation and what
process the secondary legislation will follow.
Secondary legislation can also create new rules
or add more details to an Act.

8. Object of delegated legislation
 To reduce Parliaments workload
 Decentralization and devolution of powers to
local authorities
 To allow detail to be added at a later date
 To meet local variation
 To meet emergency or contingency matters e.g.
war, public health
 To ensure flexibility in law making in dealing
with changing circumstances

9. What is delegated/ subordinate
legislation?
 It is written law made by bodies exercising
powers delegated by Parliament
 The proviso of Article 65(1) of the
Constitution empowers the Parliament to
delegate to any person or Authority, by
Act of Parliament, power to make orders,
rules, regulations, bye laws or other
instruments having legislative effect.

10. Exception
 But parliament cannot delegate all legislative
power. In our country parliament within a
certain limit can delegate its power. The area of
the limit has been prescribed by the following
case: In Anower Hossain Chowdhury vs.
Bangladesh 41 DLR (AD) 165.The Supreme
Court held that separation of power is a basic
structure of the constitution of Bangladesh and
the parliament cannot delegate its essential
legislative functions but only can delegate non
essential functions.

11. Instruments used to make
subordinate legislation
 Rules
 Regulations
 Order
 Notification
 Bye-laws
 Proclamations
 Scheme

12. Legislative Authority
 Types of legislative authorities are:
 The Government (Rule)
 Statutory authorities such as Boards,
Commissions and Agencies etc. (Regulations)
 Administrative bodies (Notification)
 Individual Organization (Notification)
 Local Government (Bye-Laws)

13. Types of subordinate legislation
 There are three main types of subordinate
legislation in Bangladesh:
 Rules, regulations and other legal instruments
having the force of law-
 Subordinate legislation made by the
government is referred to as rules.
Example.- Family Courts Rules, 1985,
Tourists Baggage (Import) Rules, 1981
-----Service Rules,2012

14. Regulations
 Subordinate legislation made by statutory
authorities established by law is called
regulations.
 Example.- Boiler Regulation,1951,
Depositories Regulations, 2000
-----Pension Regulations,2012

15.  Orders.- It refers to short pieces of
delegated legislation that make special
provisions or directions in respect of
particular persons or things or classes of
persons or things
 Example.-
 Pre-shipment Inspection Audit Order, 2000
 Export Import Order,2010-2012

16. Other legal instruments would include,
 For example,
 Notifications drafted by administrative bodies
and
 Example: for coming into force of any Act
 By-laws, which are generally made by a created
authority such as a local government.
 Example:
 Gazipur Cantonment (Building Construction)
Bye-laws, 2006.

17.  "Proclamations" are short pieces of delegated
legislation used to declare the legal status of
certain persons or things (e.g. that an area is a
security area) or to declare the existence of a
state of affairs (e.g. a state of emergency or
danger to public order) in order that the
provisions of the parent Act will apply in respect
of such persons, things or state of affairs.

18.  Scheme.- Many time delegated legislation
is termed as a Scheme to denote the
handling of the subject-matter as an
independent Scheme

19. Subordinated legislation also
called-
 Delegated legislation
 Executive legislation
 Subsidiary legislation
 Inferior legislation

20. 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.

21. Controls of Delegated
legislation
 1. General control methods
 2. Parliamentary Control
 3. Judicial Control

22. Cont.
 1 General control methods
 Consultation
 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.
 Publication
 All DL is published, therefore is available for
public scrutiny.

23. Cont.
 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.

24. Cont.
 3. Judicial Control: 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:
 Procedural 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.
 Substantial ultra virus
 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.

25. Importance of Control over Delegated
Legislation
 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.

26. The End
Thank You