Delegated Legislation and Why It Grew

That third point is the constitutional hook for the whole of [Judicial Control over Delegated Legislation], and it should be quoted with the Article number.

Why the legislature delegates

The syllabus asks for the reasons for growth as a separate head. There are nine that are worth giving, and the best answers explain three or four properly rather than listing all nine.

1. Pressure on legislative time. A legislature sits for a limited number of days a year and must deal with the Budget, policy debates, questions and the great controversial Bills. If it also had to enact every technical detail, nothing would get through. Delegation lets Parliament settle policy and leave the working out to others.

2. Technicality of subject matter. The tolerable level of a pollutant, the design of an electrical installation, the standards for a drug trial, the capital adequacy of a bank: these require expertise that no legislature possesses. Members debate policy; engineers and pharmacologists write standards.

3. Flexibility. An Act can be amended only by the legislature, which may not be sitting. A rule can be amended in days. When a statute must respond to a changing market, a new disease or a fluctuating price, the detail has to be in a form that can move.

4. Emergency. In war, famine, flood or epidemic the executive must be able to act at once and to make general rules binding the whole population. Every modern emergency statute confers wide rule making power for that reason.

5. Experiment. A new administrative scheme can be tried out through rules, tested and altered without the political and procedural cost of amending an Act each time.

6. Unforeseen contingencies. However carefully a Bill is drafted, situations arise that nobody anticipated. A rule making power lets the gap be filled without waiting for an amending Act, and this is why so many Acts contain a power to remove difficulties.

7. Local variation. A single rule cannot suit Mumbai and a hill district. Bye law making power devolved on local authorities lets the detail follow local conditions.

8. Confidentiality and speed in some fields. Exchange control, taxation of commodities and import controls have to take effect the moment they are announced, because advance notice defeats them. The legislative process cannot deliver that.

9. The growth of the administrative State itself. This is the underlying reason and it is treated in [The Rise of the Administrative State]. Once the State takes on the functions of a welfare State, the volume of law required is beyond any legislature's capacity to enact directly.

The objections, and why the topic is controversial

An answer that gives only the reasons for growth has given half the topic. Delegated legislation has been criticised since it appeared, and the criticisms are what the controls in the next three chapters answer.

It is law made by people who are not elected. The rule maker is a department, not a legislature, and the citizen has no vote on it.

It escapes the scrutiny a Bill receives. A Bill is debated, is scrutinised in committee, is reported in the press and can be opposed. A rule is drafted in a department and published in a Gazette almost nobody reads.

Its volume is unmanageable. The quantity of delegated legislation vastly exceeds the quantity of primary legislation, and no legislature can supervise it all.

It may be badly drafted or obscure, because it is prepared quickly and by people whose training is administrative rather than legal.

It can be used to widen the executive's own power, especially through a Henry VIII clause, which is a provision empowering the executive to modify the Act itself. The name comes from the Statute of Proclamations of 1539, under which Henry VIII was empowered to legislate by proclamation, and it is treated in [Forms and Types of Delegated Legislation].

The Committee on Ministers' Powers, appointed in England under the chairmanship of the Earl of Donoughmore and reporting in 1932, was set up because of exactly these fears, which had been sharpened by Lord Hewart's book The New Despotism. Its conclusion is the one still generally accepted: delegated legislation is necessary and inevitable, and the answer is not to abolish it but to confine it and to control it. It recommended that the powers be clearly defined, that the exceptional powers such as Henry VIII clauses be used only where essential and for a limited period, and that both Houses have a committee to scrutinise the rules made.

A worked example

The Food Safety and Standards Act empowers the Food Authority to make regulations specifying the standards for articles of food, and the Central Government to make rules for carrying out the purposes of the Act.

Ask what would happen if there were no such power. Parliament would have to enact, in a statute, the permitted level of every additive in every food, and to amend that statute every time a scientific committee revised a figure. It would have to do the same for pesticide residues, for labelling and for packaging materials. Nothing else would ever be debated, and the standards would be years out of date by the time they were passed.

Now ask what could go wrong once the power exists. The Authority could set a standard so strict that it excludes small producers, which is a policy choice Parliament never made. It could exempt a category of producer without any basis, which is arbitrary under Article 14. It could make a regulation retrospective, taking away a right somebody had already acquired. It could make a regulation that contradicts the Act itself. Each of those is a ground on which the regulation can be attacked, and each is treated in [Judicial Control over Delegated Legislation].

That is the shape of the whole module: the power is necessary, and everything after it is about the limits.

Distinctions worth having straight

What it does NOT mean

It does not mean the executive can make law whenever it likes. Every rule needs a parent Act conferring the power, and it is valid only so far as it stays within it.

It does not mean delegated legislation is inferior law that a court may ignore. A valid rule binds a court exactly as an Act does.

It does not mean the legislature has surrendered its power. It may repeal the parent Act, amend the rule making power, or annul the rules where the Act provides a laying procedure: [Legislative Control over Delegated Legislation].

Quick revision

1. Delegated legislation: law made by an authority other than the legislature under a power conferred by an Act. Also called subordinate or subsidiary legislation.
2. Vocabulary: rule, regulation, bye law, order, notification, scheme. Parent Act, ultra vires, intra vires.
3. It is "law" within Article 13(3)(a), so it is void if inconsistent with a fundamental right.
4. Reasons for growth: pressure on legislative time, technicality, flexibility, emergency, experiment, unforeseen contingencies, local variation, the need for immediate effect, and the growth of the welfare State.
5. Criticisms: unelected law makers, escape from scrutiny, sheer volume, poor drafting, and Henry VIII clauses.
6. Committee on Ministers' Powers, 1932, Donoughmore: delegated legislation is necessary and inevitable; define the powers, use exceptional powers sparingly, and set up scrutiny committees.

Test yourself

1. What is delegated legislation? Why has it grown? Delegated legislation is law made by the executive or another authority under a power conferred by an Act of the legislature, and it has the force of law provided it is within the power conferred and consistent with the Constitution. It has grown because a legislature has limited time and cannot enact the detail of every scheme; because modern regulation is technical and requires expertise the legislature does not have; because rules can be amended quickly whereas an Act cannot; because emergencies require immediate general rules; because administrative arrangements need to be capable of experiment; because unforeseen contingencies must be met without an amending Act; because local conditions vary; because some measures such as exchange and import controls must take effect without notice; and above all because the welfare State requires a volume of law beyond any legislature's capacity to enact directly.

2. State the objections to delegated legislation and the answer to them. The objections are that the law is made by persons who are not elected; that it escapes the debate, committee scrutiny and publicity that a Bill receives; that its volume is beyond supervision; that it is often badly drafted because it is prepared quickly by administrators; and that it may be used to enlarge executive power, most obviously through a Henry VIII clause allowing the executive to modify the Act itself. The answer, given by the Committee on Ministers' Powers in 1932, is that delegated legislation is necessary and inevitable, and that the remedy is not abolition but control: clear definition of the power conferred, sparing and time limited use of exceptional powers, and scrutiny committees in both Houses. Indian law adds judicial control, on the grounds set out in the chapters that follow.

3. Is delegated legislation "law"? Yes. It binds citizens and courts in the same way as the parent Act, breach of it can be penalised where the Act so provides, and it falls within the definition of "law" in Article 13(3)(a) of the Constitution, which expressly includes an ordinance, order, bye law, rule, regulation, notification, custom or usage having the force of law. The consequence is that a rule inconsistent with a fundamental right is void.

4. Distinguish delegated legislation from an administrative instruction. Delegated legislation is made under a statutory power to legislate, has the force of law, binds citizens and courts, and can be enforced by a citizen. An administrative instruction, such as a circular or office memorandum, is issued under the general executive power, has no force of law, binds only the administration internally, and cannot be enforced by a citizen as such, although a published policy may found a legitimate expectation and a departure from it in an individual case may be arbitrary under Article 14.

5. What is a Henry VIII clause? A provision in an Act empowering the executive to modify the Act itself, usually for the purpose of removing difficulties in bringing it into operation. The name comes from the Statute of Proclamations 1539, under which Henry VIII was empowered to legislate by proclamation. It is the most criticised form of delegation because it allows the delegate to alter the very instrument that limits it, and the Committee on Ministers' Powers recommended that it be used only where essential and for a limited period.