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Delegated legislation

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HomeBrud.gifAdministrative LawBrud.gifDelegated legislation

Also called Subordinate Legislation in Administrative Law, Delegated legislation is law made by an executive authority under powers given to them by primary legislation (such as Parliament) 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.

Generally, delegation of legislation is necessary because the law can by an expert or a local body which has a better understanding, knowledge and expertise than the Legislature.

It is also known as 'secondary legislation' or 'subordinate legislation'.

It is now firmly established that Excessive delegation is unconstitutional.

The Act that gives the powers to the executive to do the legislation is called the enabling statute, often called the parent Act.

The bulk of delegated legislation is governmental: it consists mainly of Orders in Council and instruments of various names (e.g. orders, regulations, rules, directions, and schemes) made by ministers.

Its primary use is to supplement Acts of Parliament by prescribing the detailed and technical rules required for their operation; unlike an Act, it has the advantage that it can be made (and later amended if necessary) without taking up parliamentary time. Delegated legislation is also made by a variety of bodies outside central government, examples being byelaws, the Rules of the Supreme Court, and the codes of conduct of certain professional bodies.

Most delegated legislation (byelaws are the main exception) is subject to some degree of parliamentary control, which may take any of three principal forms:

  • (1) a simple requirement that it be laid before Parliament after being made (thus ensuring that members become aware of its existence but affording them no special method or opportunity of questioning its substance);
  • (2) a provision that it be laid and, for a specified period, liable to annulment by a resolution of either House (negative resolution procedure); or
  • (3) a provision that it be laid and either shall not take effect until approved by resolutions of both Houses or shall cease to have effect unless approved within a specified period (affirmative resolution procedure). In the case of purely financial instruments, any provision for a negative or affirmative resolution refers to the House of Commons alone.

All delegated legislation is subject to judicial control under the doctrine of ultra vires. Delegated legislation is interpreted in the light of the parent Act, so particular words are presumed to be used in the same sense as in that Act. This rule apart, it is governed by the same principles as those governing the interpretation of statutes.

Classification of Delegated legislation

Delegated legislation can be classified on the basis of the nature of the power conferred on administrative authorities.

  • Appointment Day Clause: Empowers executive authority to determine the day for the commencement of the Act
  • Skeleton Legislation: Legislature enacts the skeleton and administration has to provide the flesh through subordinate legislation
  • Power of inclusion and exclusion: Application of the Act can be expanded or restricted by making additions or deletions in the schedule through delegated legislation
  • Power of extension and application of existing laws: Some statute confers powers on the Government to adopt and apply laws existing in other states with incidental changes to a new State.
  • Power of suspension: Power delegated to the Government to suspend or to make exemption from all or any of the provisions of the Act
  • Power of modification: Power on the executive to modify the statute itself.
    • Delhi Laws Act case: Power of modification should not be used in such a manner so as to change the essential policy of the Act in question
  • Power to remove difficulties: Nicknamed "Henry VIII Clause", power to modify a statute may be conferred on the Government by a removal of difficulties clause. The King is regarded popularly as the impersonation of executive autocracy.
  • Power to prescribe punishment: In US, the penalty for violation of rules can be fixed by the legislature and not by the authority. However, in England, the power to impose penalty has been delegated in some statute.
  • Power to impose tax
  • Conditional Legislation

Related Cases / Recent Cases / Case Law

Related Cases / Recent Cases / Case Laws

Related Terms

  • Annulment: The cancellation of delegated legislation by resolution of either House of Parliament.
  • Byelaw: A form of delegated legislation, made principally by local authorities. District and London borough councils have general powers to make byelaws for the good rule and government of their areas, and all local authorities have powers to make them on a wide range of specific matters (e.g. public health).