Delegated Legislation and Why It Grew
Chapter Eleven
Syllabus topic 2.1, "Delegated Legislation Reasons for growth of Delegated Legislation"
Pages 64 to 69 of 396
In one line
Delegated legislation is law made by somebody other than the legislature, under a power the legislature has given them.
In the words a student can write in an exam: delegated legislation, also called subordinate or subsidiary legislation, means the rules, regulations, bye laws, orders, notifications and schemes made by the executive or by another authority under a power conferred by an Act of the legislature; it has the force of law and binds citizens and courts in the same way as the parent Act, provided it is within the limits of the power conferred and does not offend the Constitution.
Two senses of the expression
The phrase is used in two ways and a good answer separates them at the start.
As a power: the authority given by the legislature to somebody else to make rules. In this sense we say that an Act "contains a delegation".
As a product: the body of rules actually made under that authority. In this sense we say that a rule "is delegated legislation".
Both senses are correct and examiners use both.
The vocabulary, defined
Students meet six words for the same kind of thing and are rarely told the difference. There is no rigid legal distinction, and the label used depends on the parent Act, but the ordinary usage is this.
| Term | What it usually means |
|---|---|
| Rule | Made by the Government under a rule making power in an Act, usually on procedure and detail. Section 2 of the General Clauses Act 1897 defines a rule as a rule made in exercise of a power conferred by an enactment |
| Regulation | Usually made by a statutory body or corporation for its own working, such as a University or a regulatory commission |
| Bye law | Made by a local authority such as a municipal corporation or a panchayat, operating within its area |
| Order | An executive instrument, which may be legislative if it is general and prospective, or administrative if it applies to an individual |
| Notification | The act of publishing something in the Official Gazette; the thing notified may be a rule, an appointed day, or an extension of an Act |
| Scheme | A framework made under a welfare or nationalisation statute, often containing both rules and administrative arrangements |
Parent Act is the Act which confers the power. It is also called the enabling Act or the delegating statute. Ultra vires is Latin for "beyond the powers" and means that the maker has gone outside what the parent Act allowed. Intra vires is its opposite.
Delegated legislation is law
This is the proposition that makes the topic serious, and it has three consequences.
- It binds citizens exactly as an Act does, and a breach can be punished if the parent Act provides a penalty.
- It binds the courts, which must apply it unless it is shown to be invalid.
- It is "law" within Article 13(3)(a) of the Constitution, which defines law as including any ordinance, order, bye law, rule, regulation, notification, custom or usage having the force of law. So a rule inconsistent with a fundamental right is void, just as an Act would be.
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