Forms and Types of Delegated Legislation

3. Power to amend or repeal a statute: the Henry VIII clause. A provision empowering the executive to modify the parent Act, or another Act, so far as may appear necessary to give effect to it. The name comes from the Statute of Proclamations 1539, under which Henry VIII was empowered to legislate by proclamation. Such a clause is tolerated when it is confined to removing difficulties, limited in time and subject to laying; an unlimited version is abdication. In In re The Delhi Laws Act, 1912, AIR 1951 SC 332, the portion of section 2 of the Part C States (Laws) Act 1950 which allowed an extended enactment to repeal or amend a corresponding law already applicable was held ultra vires.

4. Power to remove difficulties. Very common in modern Acts, and closely related to the Henry VIII clause. Its usual form is that if any difficulty arises in giving effect to the Act, the Government may by order do anything not inconsistent with the Act which appears necessary to remove the difficulty, and that no such order may be made after a stated number of years. Its presence in the Whistle Blowers Protection Act is noted in [Whistleblowers' Protection: the Act of 2014 and the PIDPI Resolution].

Sub-delegation

Sub-delegation is delegation by the delegate: the Act empowers A to make rules, and A makes a rule empowering B to make further rules or to decide something.

The governing maxim is delegatus non potest delegare, a delegate cannot further delegate. Applied to delegated legislation the position is:

1. Sub-delegation is not permitted unless the parent Act authorises it, expressly or by necessary implication.
2. Where it is authorised, the sub-delegate is confined by both the parent Act and the rule under which it acts.
3. Sub-delegation of the essential legislative function is bad even where the Act appears to authorise it, because the legislature could not have delegated it in the first place.

Distinguish sub-delegation of legislative power, which is what this chapter is about, from sub-delegation of decision making power, which is a ground of review under [Grounds of Judicial Review: Failure to Exercise Discretion].

Classification 3: by purpose

This is the list that appears in the textbooks and it is worth knowing because it is a convenient way of describing what a particular section does.

Conditional legislation, which is not delegated legislation at all

This is the distinction most often set as a question, and the one students most often get wrong.

In delegated legislation, the legislature makes the law but leaves some of its content to be supplied by the delegate. The delegate exercises a power that is legislative in character: it adds to the law.

In conditional legislation, the legislature makes the law completely, and leaves to another authority only the decision whether, when or where it shall be brought into operation. The delegate adds nothing to the content of the law. Its task is to find a fact, that the conditions for bringing the law into force exist, and to declare it.

The practical consequence is the one to remember: an Act attacked for excessive delegation is often defended on the ground that it is conditional legislation only, and if that defence succeeds the attack fails at once, because the question of policy and guidance never arises.

A worked example: reading a single Act

The Maharashtra Shops and Establishments Act contains these provisions. Classify each.

1. "This Act shall come into force in such areas and on such dates as the State Government may, by notification, appoint." Conditional legislation. The law is complete; only its occasion is left.
2. "The State Government may, by notification, apply all or any of the provisions of this Act to any establishment or class of establishments." Extension type delegated legislation, and it needs a criterion in the Act or it is at risk of being uncanalised.
3. "The State Government may make rules prescribing the registers to be maintained and the forms of notice." Framing type, normal delegation. Unproblematic.
4. "The State Government may exempt any establishment from all or any of the provisions of this Act." Exclusion or exemption type, and again it needs a standard.
5. "The Commissioner may, with the previous sanction of the State Government, make bye laws for the area of the Corporation." Sub-delegation, valid because the Act authorises it and confines it by requiring sanction.
6. "If any difficulty arises in giving effect to the provisions of this Act, the State Government may, by order published in the Official Gazette, make such provisions, not inconsistent with this Act, as appear to it to be necessary for removing the difficulty, provided no such order shall be made after the expiry of two years." Removal of difficulties, a confined Henry VIII clause. Valid because it is limited in subject matter and in time.

Notice that one short Act contains five different types and one instance of something that is not delegated legislation at all. Being able to sort a section into these boxes is precisely what an examiner is testing.

What it does NOT mean

The title does not decide the legal character. A thing called an order may be legislative or administrative.

Exceptional delegation is not automatically invalid. It is delegation that requires closer scrutiny, not delegation that is forbidden. A time limited removal of difficulties clause is exceptional and valid.

Sub-delegation is not always unlawful. It is unlawful only where the parent Act does not authorise it, or where what is sub-delegated is the essential legislative function.

Conditional legislation is not a lesser form of delegated legislation. It is a different thing, and the difference is that no legislative power passes at all.

Quick revision

1. Three classifications: by title, by width of power, and by purpose. The second is the one with legal consequences.
2. By title: rule, regulation, bye law, order, notification, scheme. The label does not decide the character.
3. Normal delegation: policy in the Act, detail with the delegate. Positive and negative forms.
4. Exceptional delegation: power over matters of principle; power to tax; Henry VIII clauses to amend or repeal; removal of difficulties.
5. Henry VIII clause: from the Statute of Proclamations 1539. Tolerated if confined, time limited and subject to laying.
6. Sub-delegation: delegatus non potest delegare; permitted only if the parent Act authorises it; the essential legislative function may never be sub-delegated.
7. By purpose: enabling, extension, inclusion, exclusion, suspending, dispensing, taxing, modifying, framing, removal of difficulties.
8. Conditional legislation: the law is complete, only its operation is left to be triggered; excessive delegation cannot arise.

Test yourself

1. Describe the forms and types of delegated legislation. Delegated legislation may be classified in three ways. By title it appears as rules, regulations, bye laws, orders, notifications and schemes, though the title does not determine legal character. By the width of the power conferred it is either normal delegation, where the Act settles policy and leaves detail, or exceptional delegation, which includes power to legislate on matters of principle, power to impose a tax, Henry VIII clauses permitting amendment or repeal of a statute, and removal of difficulties clauses. By purpose it is described as enabling, extension, inclusion, exclusion, suspending, dispensing, taxing, modifying, framing and removal of difficulties. Sub-delegation, that is delegation by the delegate, is permitted only where the parent Act authorises it.

2. What is a Henry VIII clause? Is it valid in India? It is a provision empowering the executive to modify or repeal the parent Act or another Act, named after the Statute of Proclamations 1539 under which Henry VIII could legislate by proclamation. It is the most criticised form of delegation because it allows the delegate to alter the instrument that confines it. It is not invalid in India as such. A narrow removal of difficulties clause, confined to what is necessary to give effect to the Act, limited in time and subject to laying, is ordinarily upheld. An unlimited power to modify the Act is abdication. In In re The Delhi Laws Act, 1912, AIR 1951 SC 332, the part of section 2 of the Part C States (Laws) Act 1950 permitting an extended enactment to repeal or amend a corresponding existing law was held ultra vires.

3. Distinguish delegated legislation from conditional legislation. In delegated legislation the legislature makes the law but leaves part of its content to be supplied by the delegate, whose act is legislative in character. In conditional legislation the legislature makes the law completely and leaves to the delegate only the decision whether, when or where it shall be brought into operation, which is an executive act consisting of finding a fact. The distinction matters because excessive delegation cannot arise in conditional legislation: no legislative power has been delegated, so the question whether the Act supplies policy and guidance never arises.

4. Is sub-delegation permissible? Only where the parent Act authorises it, expressly or by necessary implication, because a delegate cannot further delegate. Where it is authorised, the sub-delegate is bound both by the parent Act and by the rule under which it acts, and any excess is ultra vires. Sub-delegation of the essential legislative function is invalid in any event, since the legislature could not have delegated that function in the first place.

5. "The name given to an instrument decides its legal character." Comment. The statement is wrong. The label used in the parent Act, whether rule, regulation, bye law, order or notification, is a matter of drafting convention and does not determine the instrument's character. An order may be legislative where it lays down a general rule for the future, and administrative where it determines the case of an identified person; the consequences, in terms of natural justice, reasons and the appropriate writ, follow from what the instrument does and not from what it is called.