ASSIGNMENT REPORT

ON

PAPER IV

LEGISLATIVE PROCEDURE AND PROCEDURE IN FINANCIAL MATTERS

ASSIGNMENT TOPIC
CONTROL OVER DELEGATED LEGISLATION

CENTRE FOR PARLIAMENTARY STUDIES AND TRAINING

SIGNATURE

-------------------------

1
 CONTENTS
 Introduction
 Delegated or subordinate legislation
 Delegated legislature
 Meaning & scope
 Need for delegated legislation
 Importance of delegated legislatio
 Delegated legislation: position under constitution of india
 Criticism of delegated legislation
 Definition of delegated legislation
 Distinction between administrative actions from quasi-legislative actions
 The need for delegated legislation
 Limitation on parliamentary time
 Theoretical objections against delegated legislation
 Delegated legislation is law
 Delegated legislation extends
 Criticism of use of delegated legislation
 Parliament sovereignty
 Advantages and disadvantages of delegated legislation
 Problem of sub-delegation
 The wording of delegated legislation
 Dependence on individuals making claims to review legislation
 Influence of the high courts
 Legislative control on delegated legislation
 Direct general control
 Direct special control
 Laying on table
 Legal consequences of non-compliance with the laying provisions
 Indirect control
 Effectiveness of parliamentary control over delegated legislation
 Conclusion and suggestions

2
  Reference / bibliography
INTRODUCTION
Delegated legislation is a kind of subordinate legislation. Generally, the ‘delegated
legislation’ means the law made by the executive under the powers delegated to it by the
Supreme legislative authority. It comes in the form of orders, bye-laws etc. The Committee
on Minister’s power said that the term delegated legislation has two meanings-

Firstly, it means the exercise of power that is delegated to the executive to make
rules.Secondly, it means the output the output or the rules or regulations etc. made under the
power so given.Sub-Delegation is also a case in Indian Legal system. The power to make
subordinate legislation is derived from existing enabling act. It is fundamental that the
delegate on whom such power is conferred has to act within the limits of the enabling act. Its
purpose is to supplant and not to supplement the law. Its main justification is that sometimes
legislature does not foresee the difficulties that will come while enacting the law. Therefore,
delegated legislation fills in those gaps which are not seen while the formulation of the
enabling act. Delegated Legislation gives flexibility to law and there is ample scope for
adjustment in the light of experiences gained during the working of legislation.

In modern times, delegated legislation has become imperative and inevitable due to
the following reasons:-

Time factor – The parliament is so much occupied with matters concerning foreign
policy and other political issues that it has no time to enact social legislation in all its details.
Therefore, the Parliament frames only the broad rules and principles, and the department is
left to make rules and to fill in details.

The technicality of the matters – With the progress of the society, things have become
more complicated and technical. All the legislators may not know them fully and, hence, they
cannot make any useful discussion on it. Therefore, after framing of the general policy by the
Parliament the government departments or other bodies who know its technicalities are given
the power to lay down the details.

Emergency – During the time of emergency quick and decisive action is very
necessary, and at the same time, it is to be kept confidential. The Parliament is not at all fit to
3
serve this end. Therefore, the executive is delegated the power to make rules to deal with
situations. In England, the defense of Realm Act, 1914-15, the Emergency Powers Act, 1920
and the Emergency Powers Act, 1939-40 are examples of such delegation during the First
and Second world wars.

Flexibility- To adapt the law according to future contingencies or any other

adjustments which are to be made in the in future can be done efficiently and effectively only
when a small body is given the powers to do so. Otherwise amending acts will become
necessary and that would cost wastage of time and money. Therefore, delegation to the
departments becomes necessary.

Local Matters- These are matters which concern only a particular locality or a
particular group of the profession. Any legislation on these matters needs a consultation with
the people of that particular locality, group or profession. Thus regarding such legislation, the
departments are given powers to make changes and rules in consultation with the person
acquainted and with interested in it.

Experimentation- Some Acts of Parliament provides for their coming into operation in
different localities on different dates according to their inability, and as a matter of
experiment. For this purpose, the ministers are given the power to make orders about the date
of its application.
Prof. Keith has, in great detail, described the dangers of the delegated legislation. Some
important ones are:-

Legislation may be passed in a skeleton form and thus wide powers of action to make new
laws and to impose the tax is given;
Parliament gets inadequate time to scrutinize the regulations;
Some of the regulations attempt to deprive the subjects of recourse to the law courts for
protection;
The procedural advantages of the Crown against the subject (Crown Proceedings Act,
1947) has improved the position to some extent but renders it difficult for him to obtain
redress for illegal actions done under the authority of delegated legislation. Keeton has
summarized the dangers under two heads:

4
 Excessive power may be delegated.:The Governments Department may assume a
wider legislative competence than what the Parliament has granted.
Safeguard against Delegated Legislation ;The following safeguards have been generally
suggested by jurists against the delegated legislation:-

In England when a bill that provides for the delegation of power is before the house,
the house may modify, amend or refuse altogether the power proposed to be delegated in the
bill. The Government has set up a Select Committee on statutory instrument since 1944 to
examine every instrument laid down before the house of commons with a view to
determining whether the special attention of the house should be drawn to it certain specified
grounds.

An act was also passed in 1946, i.e. ‘Statutory instrument act which provides that
copy of the Instrument shall be laid before the house before it comes into operation. Apart
from these, there are other methods also through which the parliament can exercise control. It
is submitted that in practice these safeguards have not proved much effective and thus,
substantial control is not exercised.

To some extent, judicial control is also exercised over the delegated legislation. In
England, as the parliament is supreme, it can delegate any amount of power. Therefore, the
judicial control is confined within very narrow limits. The courts in these matters interfere
under the doctrine of ultra vires or under their writ jurisdiction. The main ground on which
this interference is made is that the authority to whom the power is delegated has exceeded it.

The grounds on which courts declare bye-law ultra vires are that it is unreasonable or
repugnant to the fundamental laws of the country, or is vague, or it has not been made and
published in accordance with the rules prescribed for the same. But in modern times, there is
a tendency to oust the jurisdiction for the court and this is expressly provided in the statute
which delegates the power. Thus the courts to have not remained very much effective in
controlling delegated legislation.
It is necessary that due publicity should be given to the delegated legislation because
without such publicity it may be declared ultra vires. Certain other safeguards which have
been suggested and to some extent have been adopted in practice also are: the delegation
should be made only to trustworthy bodies expert device should be taken and the
5
persons whose interests to be affected by the concerned delegated legislation should be
consulted before making any rule regarding them. Authors, lawyers, and judges have often
vigorously attacked delegated legislation in their writings, opinions, and judgments
respectively, which have to some extent, discouraged delegated legislation.

6
 DELEGATED OR SUBORDINATE LEGISLATION

In all democratic countries, like the United Kingdom, the United States and India,
delegated legislation is being resorted to extensively. The great increase in delegated
legislation in modern times is due partly to the development of the welfare state, and partly
to the need to cope with emergencies of various kinds. Though law making is the primary
function of the Legislature, yet in no country does the Legislature monopolise the whole of
the legislative power. Out of the total legislative output, relatively only a small part is enacted
by the Legislature itself; a large bulk of legislation is made by the administration under
powers conferred on it by the Legislature
There is, in fact, no statute passed by the Legislature to-day which does not confer
some legislative or rule-making power on the administration. The A ct conferring legislative
power is known as the “Parent Act”1; the subordinate laws which emerge under it are known
by a great diversity of names such as rules, regulations, schemes, bylaws, statutory rules and
orders, etc. The administrative .authority on which the legislative power is conferred acts as
the legislature.2

Delegated legislature

The Constitution of Indian empowers Legislature to make laws for the country. One
of the significant legislative functions is to determine a legislative policy and to frame it as a
rule of conduct.3 Obviously such powers cannot be conferred on other institutions. But
keeping in mind various multifarious activities of a welfare State, it is not possible for the
legislature to perform all the functions. In such situation, the delegated legislation comes into
the picture. Delegated Legislature is one of the essential elements of administration whereby
the executive has to perform certain legislative functions.
However, one must not forget the risk associated with the process of delegation. Very
often, an overburdened Legislature may unduly exceed the limits of delegation. It may not lay
down any policy; may declare any of its policy as vague and may set down any guidelines for
the executive thereby conferring wide discretion to the executive to change or modify any
policy framed by it without reserving for itself any control over subordinate legislation.

1
M.V. PYLEE, Constitutions of the World, 2nd Edition, p. 232
2
M.P. Jain, Parliamentary Control of Delegated Legislation in India, (1964)
3
M.R. Reddi, delegated legislation, 1985 (5th edn., 2014
7
Therefore, even though Legislature can delegate some of its functions, it must not lose its
control completely over such functions.

Meaning & scope

Delegated legislation (sometimes referred as secondary legislation or subordinate legislation
or subsidiary legislation) is a process by which the executive authority is given powers by
primary legislation to make laws in order to implement and administer the requirements of
that primary legislation. Such law is the law made by
a person or body other than the legislature but with the legislature’s authority.4

Legislation by any statutory authority or local or other body other than the Legislature but
under the authority of the competent legislature is called Delegated legislation. It is
legislation made by a person or body other than Parliament. Parliament thereby, through
primary legislation, enables others to make law and rules through a process of delegated
legislation.5

Need For Delegated Legislation

The process of delegated legislation enables the Government to make a law without having to
wait for a new Act of Parliament to be passed. Further, delegated legislation empowers the
authority to modify or alter sanctions under a given statute or make technical changes relating
to law. Delegated legislation plays a very important role in the process of making of law as
there is more delegated legislation each year than there are Acts of Parliament.6 In addition,
delegated legislation has the same legal standing as the Act of Parliament from which it was
created.

Importance of delegated legislation

Delegated Legislation reduces the burden of already overburdened Legislature by enabling
the executive to make or alter the law under the authority of Legislature. Thus, this helps the
Legislature to concentrate on more important matters and frame policies regarding it.

4
Lawrence Newman, “delegated legislation”, [1960], new man publicationsp.252
5
Jay A. Sigler, A History of delegated legislation , The American Journal of Legal History, Vol. 7, No. 4 (Oct.,
1963), p. 283
6
M.V. PYLEE, Constitutions of the World, 2nd Edition, p. 232
8
It allows the law to be made by those who have the required knowledge and experience. For
instance, a local authority can be permitted to enact laws with respect to their locality taking
into account the local needs instead of making law across the board which may not suit their
particular area.7

The process of delegated legislation also plays a significant role in an emergency situation
since there is no need to wait for particular Act to be passed through Parliament to resolve the
particular situation.

Finally, delegated legislation often covers those situations which have not been anticipated by
the Parliament during the time of enacting legislation, which makes it flexible and very useful
to law-making. Delegated legislation is, therefore, able to meet the changing needs of society
and also situations which Parliament had not anticipated when they enacted the Act of
Parliament.8

Delegated Legislation: Position under Constitution of India

The Constitution of India gives powers to the Legislature to delegate its functions to other
authorities, to frame the policies to carry out the laws made by it. In the case of D. S. Gerewal
v. State of Punjab 1959 AIR 512,9 the Supreme Court held that Article 312 of the
Constitution of India deals with the powers of delegated legislation. Justice K.N. Wanchoo
observed “There is nothing in the words of Article 312 which takes away the usual power of
delegation, which ordinarily resides in the legislature.
The phrase “Parliament may by law provide” in Article 312 should not be interpreted to mean
that there is no scope for delegation in law made under Article312…. The England law
enables the Parliament to delegate any amount of powers without any limitation. On the other
hand in America, like India, the Congress can delegate only some of its functions. Thus, it
does not have unlimited or uncontrolled powers. Thus, India allows for delegated legislation
but in a defined and controlled manner with certain restrictions.

Criticism Of Delegated Legislation

7
Lawrence Newman, “delegated legislation”, [1960], new man publicationsp.252
8
ibid
9
M.R. Reddi, delegated legislation, 1985 (5th edn., 2014
9
Delegated legislation apart from having many advantages is criticized on many grounds-
It is argued that delegated legislation enables authorities other than Legislation to make and
amend laws thus resulting in overlapping of functions.
It against the spirit of democracy as too much-delegated legislation is made by unelected
people.10

Delegated legislation subject to less Parliamentary scrutiny than primary legislation.

Parliament, therefore, has a lack of control over delegated legislation, and this can lead to
inconsistencies in laws. Delegated legislation, therefore, has the potential to be used in ways
which Parliament had not anticipated when it conferred the power through the Act of
Parliament.

Delegated legislation generally suffers from a lack of publicity. Since the law made by a
statutory authority not notified to the public. On the other hand, the laws of the Parliament are
widely publicised. The reason behind the lack of publicity is the large extent of legislation
that is being delegated. There has also been concern expressed that too much law is made
through delegated legislation.11 In the end we can say that the delegated legislation is
important in the wake of the rise in the number of legislations and technicalities involved. But
at the same time with the rise in delegated legislation, the need to control it also arises
because with the increase in the delegation of power also increases the chance of the abuse of
power.
The judicial control apart from the legislative and procedural control is the way how the
delegation of power can be controlled12. Thus, the delegated legislation can be questioned on
the grounds of substantive ultra vires and on the ground of the constitutionality of the parent
act and the delegated legislation. The latter can also be challenged on the ground of its being
unreasonable and arbitrary

Definition of Delegated Legislation

10
supra
11
Jay A. Sigler, A History of delegated legislation , The American Journal of Legal History, Vol. 7, No. 4 (Oct.,
1963), p. 283
12
ibid
10
In short, delegated legislation13 means the exercise of legislative power by an agency that is
subordinate to the legislature. This subordinate body acquires the power from the act of the
legislature. Power is transferred from the principal lawmaker to the lower body, which may
be the executive, cabinet, council of minister, or a specific administrative agency, by the
mechanism of delegation. Generally, delegation refers to the act of entrusting another
authority or empowering another to act as an agent or representative. By the same token,
delegation of legislative powers means the transfer of law-making authority by the legislature
to the executive, or to an administrative agency. In line with the power granted to them by the
legislature administrative, agencies can issue rules, regulations and directives, which have a
legally binding effect.

The study of rule-making14 (delegated legislation) by the executive branch of government

occupies a significant place in the administrative law due to its increasing growth, complexity
and the dangers it poses to individual liberty and freedom. Scholars regard delegated
legislation as a typical characteristic of administrative activity in public administration.15

One of the most significant developments of the present century is the growth in the
legislative powers of the executive. Measured by volume, more legislation is produced by the
executive government than by the legislature. The increase in quantity and quality of
delegated legislation, if not supplanted by clear procedures and effective controlling
mechanisms, may ultimately result in arbitrariness and abuse of power, which in turn leads to
injustice and violation of liberty. That is why it is regarded by many as a “necessary evil.” It
was considered a danger to the liberties of the people and a devise to place despotic powers in
few hands. It was said that delegated legislation preserved the outward show of representative
institutions while placing arbitrary and irresponsible power in new hands.

However, in reality, the intricacies and complexities of modern government have proved
beyond doubt that the delegation of legislative powers to administrative agencies is a
compulsive necessity. In no democratic society committed to the establishment of a welfare
state, the legislature monopolizes the legislative power. It will be futile for the legislature to

13
M.P. Jain, Parliamentary Control of Delegated Legislation in India, (1964)
14
Narasimhan, Interepretation of Indian Statutes (1952
15
ibid
11
solve the ever increasing social and economic problems, unless it shares some of its powers
with the executive and other administrative organs of the state.

A statute may be inexact, incomplete, and unintelligible, and may even be misleading unless
it is read with specific rules and regulations made there under. Delegated legislation16 also
serves a technique to relieve pressure or legislature’s time so that it can concentrate on
principles and formulation of polices. After this, it has to leave technical and detailed matters
which are necessary to fill the gaps in the primary legislation. Nowadays, administrative
rule-making has become a typical characteristic of the administrative law and administrative
activity. The 20th century has been termed as the age of regulation due to the increasing
number of instruments issued by the executive branch of government. Most of the legislations
that govern the conduct of the individual come from administrative agencies, not from the
legislature.

Distinction between administrative actions from quasi-legislative actions

There is only a hazy borderline between legislation and administration, and it is difficult to
show there exists a fundamental difference between the two. One common point of difference
is that the legislative power is the power to lay down the law for people in general, whereas
administrative power is the power to lay down the law for them, or apply the law to them in
some particular situation. It is also a common principle of legislation that legislative acts
should be public.17

One test of distinction may be that where the former is a process of performing particular acts
or of making decisions involving the application of general rules to particular cases, the latter
is the process of formulating a general rule of conduct without reference to particular cases
and usually for future operation.18
Rule - making action of the administration partakes with some exceptions, all the
characteristics of a normal legislative action process. These may be generality, non-
retroactivity and a behavior which bases action on policy consideration and gives a right or a
disability. In some cases, however, administrative rule making action may be particularized,

16
Jay A. Sigler, A History of delegated legislation , The American Journal of Legal History, Vol. 7, No. 4 (Oct.,
1963), p. 283
17
M.V. PYLEE, Constitutions of the World, 2nd Edition, p. 232
18
ibid
12
retroactive and based on evidence. On the other hand, a quasi-judicial action is particularly
based on the facts of the case and declares a pre-existing right.19

The Need for Delegated Legislation

Despite the ever-increasing volume of primary legislation, the complexities of governing a

sophisticated society (and even a developing society) demands the delegation of some
legislative functions to inferior bodies such as ministers and administrative agencies. Clearly
parliament does not have time or resources to enact every single piece of legislation that is
needed in the form of primary legislation, which can be fully debated and scrutinized in
accordance with legislative procedures. The result is delegated legislation- legislation
produced by an ‘inferior body’ which nevertheless has the force of law.20

Tackling the complexities of modern administration in an efficient and efficient manner

demands an atmosphere of complexity. Parliament has to follow strict legislative procedures
to make a single law. Hence, it will be far from being flexible without delegating some of its
powers to the executive.

The complexities of modern administration are so baffling and intricate and bristle with
details, urgencies and difficulties. Therefore, to tackle these problems, an atmosphere of
flexibility is needed. A parliament which sits for a limited period of time and which is
required to observe strict legislative procedures will be far from being flexible without
delegating some of its powers to the executive.

Taking into account the above general justification, the following factors may be mentioned
as reasons for the need for delegated legislation.

Limitation on Parliamentary Time

Art 58(2) of the F.D.R.E. constitution reads:21

19
M.P. Jain, Parliamentary Control of Delegated Legislation in India, (1964)
20
Lawrence Newman, “delegated legislation”, [1960], new man publicationsp.252
21
ibid
13
“The annual session of the house shall begin on Monday of the final week of the Ethiopian
month of Meskerem and end on the 30th day of the Ethiopian month of sene. The House may
adjourn for one month of recess during its annual session”
As stated in Art. 58(2) of the constitution, 22assuming that there is one month recess, for how
many maximum days will the House of representatives sit in parliament? Then subtract 39-
week days and multiply it by 8 working hours. Taking into consideration the average time
necessary to make law, do you think the house of people’s representatives has sufficient time
to provide all the laws in quantity and quality

It is said that even if today parliament sits all the 365 days in a year and all the 24 hours, it
may not give the quantity and quality of law, that which is required for the proper functioning
of a modern government. Therefore, it is clear and self-evident that the main reason for
delegation of legislative power is to relieve the pressure on parliamentary time.23

Technicality Subject of Matter

I.) “For the purpose of fostering monetary stability and credit and exchange conditions
conducive to the balanced growth of the economy of Ethiopia, the Bank may issue directives
governing its own credit transactions with banks and other financial institutions, and credit
transactions of banks, and other financial institutions.”(Art 28(1) of Monetary and Banking
Proclamation No.83/1994)
II) “The council of ministers may by regulations exempt any income recognized as such by
this proclamation for economic, administrative or social reasons”
(Art 13(e) of Income Tax Proclamation No.286/2002)
III) “1. Regulations and directives may be issued for the complementary of this
proclamation.24

“2. The regulations shall, in particular, provide for the payment of fees in connection with
applications for the grant of patents and utility model certificates and for the registration of
industrial designs and matters related there to.”
(Art 53 sub 1 and 2 of Inventions and Industrial Designs Proclamation No 123/1995)

22
M.R. Reddi, delegated legislation, 1985 (5th edn., 2014
23
Lawrence Newman, “delegated legislation”, [1960], new man publicationsp.252
24
ibid
14
Which of the above provisions do you think are technical matters which do not involve policy
issue and need some expertise knowledge?

Legislation has become highly technical because of the complexities of a modern

government. Members of the parliament are not experts, and so they cannot comprehend the
technicality of the subject matter of some economic and social issues. Technical matters, as
distinct from policy issues, are not susceptible to discussion in parliament and therefore
cannot be readily be included in legislation. Therefore, technicality of the subject matter
stands as another justification for delegation. It is convenient for the legislature to confine
itself to policy matters only and leave the technical law making sequence to the
administrative agencies.

Flexibility

Ordinarily legislative process suffers from lack of viability and experimentation. A law
passed by parliament has to be in force till the next session of parliament when it can be
replaced Therefore, in situations which require adjustments frequently and experimentation,
administrative rule making is the only answer.
The need for frequent adjustment or flexibility can be observed from the following
provision.25

“The Bank may, from time to time, prescribe by regulations the terms and conditions upon
which persons departing from Ethiopia may carry with them foreign exchange or make
remittance for services.” (Art 55 of Monetary and Banking Proclamation No.83/1994)26

In the above provision, the terms and conditions for carrying foreign exchange by persons
departing from Ethiopia could be changed from time to time. Hence this flexibility could be
attained through delegation of power to make these rules.

Emergency

25
P.M. Bakshi, An Introduction to Legislative Drafting. P.V Kane, History of Dharmsastra (1930
26
M.P. Jain, Parliamentary Control of Delegated Legislation in India, (1964)
15
During emergency, it may not be possible for the parliament to pass necessary legislation to
cope up with the situations. Under such conditions, speedy and appropriate action is required
to be taken. The parliament cannot act quickly because of the time that requires passing an
act. Moreover, immediate knowledge and experience is only available with the
administration. For this reason, wide legislative power must be conferred up on the executive
to enable the government to take actions quickly.27

The above grounds clearly justify the need for administrative rule making. On the other hand,
this rule-making may have some negative effects. Can you give one undesirable impact of the
administrative rule making?

Theoretical Objections against Delegated Legislation

The fact that delegation is indispensable and inevitable due to practically convincing needs, it
has not been a bar to theoretical challenges and criticisms against it. The main constitutional
objection raised against delegation of rule making power to administrative agencies has been
the doctrine of non delegability of power, which holds that power delegated to one branch
may not be redelegated to another. People elect their representatives based on their fitness,
knowledge and ability to represent their interest.28 Hence, it is a generally accepted rule that
this mandate bestowed by the people cannot be delegated to another individual or organ,
which does not stand in a direct relation to the people. It is a cardinal principle of
representative government that the legislature cannot delegate the power to make laws to any
other body or authority.29

One of the most commonly cited sources of the rule of non delegation is the common law
maxim delegates potestas non potest delegari which means that a delegate can not further
delegates his power. Simply, the maxim indicates that power that has been delegated
originally may not be redelegated.

The maxim was originally invoked in the context of delegation of judicial power and implies
that in the entire process of adjudication, a judge must act personally except in so far as he is

27
Lawrence Newman, “delegated legislation”, [1960], new man publicationsp.252
28
Brian Hunt, Plain language in Legislative Drafting: Is it Really the Answer?, Statute Law Review, Vol. 23,
No. 1, 2002
29
P.M. Bakshi, An Introduction to Legislative Drafting. P.V Kane, History of Dharmsastra (1930
16
expressly absolved from his duty by a statue. Therefore the basic principle underlying the
maximum is that discretion conferred by the statute on an authority must be exercised by that
authority alone, unless a contrary intention appears from the language, scope or object of the
statute. Generally, it implies that, since the people delegated legislative power to the
lawmaker, executive power to the prime minister and cabinet and judicial power to the courts,
none of the institutions may redelegate its power to any other authority.30

Another objection to delegation of power is based on the doctrine of separation of powers. In

America, the doctrine of separation of powers has been raised to a constitutional status. The
U.S. Supreme Court31 has observed that the doctrine of separation of power has been
considered to be an essential principle underlying the constitution and that the powers
entrusted to one department should be exercised exclusively by that department without
encroaching up on the power of another.

Delegated legislation is law

Delegated legislation is law made by some person or body other than parliament, but with the
permission of parliament. The authority is laid down in a parent act of parliament, known as
an enabling Act which creates the structure of the law and then delegates’ powers to others to
make more detailed law in the area. A good example of enabling Acts includes the access to
justice 1999 which gave the Lord Chancellor wide powers to alter various aspects of the legal
funding scheme. There are three different types of delegated legislation these are orders in
council, statutory instruments, and by laws.32

Orders In Council

33
The Queen and the Privy Council have the authority to make orders in the council. The
Privy Council is made up of the prime minister, and other leading members of the
government. This type of delegated legislation effectively allows the government to make
legislation without going through parliament. Its main use today, is to give legal effect to
European directives. However the Privy Council has power to make law in emergency

30
M.R. Reddi, delegated legislation, 1985 (5th edn., 2014
31
Narasimhan, Interepretation of Indian Statutes (1952
32
M.V. PYLEE, Constitutions of the World, 2nd Edition, p. 232
33
Jay A. Sigler, A History of delegated legislation , The American Journal of Legal History, Vol. 7, No. 4 (Oct.,
1963), p. 283
17
situations under the emergency powers act 1920 and the civil contingencies act 2004, Orders
in council will be used to make other types of law. A good example is in 2004 an order in
council was used to change the misuse of the drugs act 1971 to make cannabis a class B
drug.34

Statutory Instruments

Statutory Instruments refers to the rules and regulations made by government ministers. They
are given authority to make regulations for areas under their particular responsibility. A good
example of what this means is that the Lord Chancellor has power regarding the legal aid
schemes, while the minister for transport is able to deal with necessary road traffic
regulations. The use of statutory instruments is a major method of law-making as there are
about 3,000 statutory instruments brought into force each year.

There are many acts which give a minister of state, power to make delegated legislation.
Some examples which I want to mention are the constitutional act 2005, in which section 65
gives the Lord Chancellor the power to issue guidance on the procedure for the judicial
appointments commission which recommends who should be appointed as judge. Also within
the serious act organised crime and police act 2005 section 27 gives the secretary of state the
power to make regulations requiring equipment used by the serious crime agency to satisfy
certain levels of design and performance. These examples which I have used show that very
different powers can be given to ministers. The legislative and regulatory reform act 2006
gives ministers the power to change acts of parliament even though the original act did not
give them power to do this.35

Bylaws

Bylaws can be made by the local authorities to cover matters within their own area for
example west Yorkshire county council can pass laws affecting the whole county but a
district or a town council can only make bylaws for its district or town. Local bylaws can
involve traffic control, such as parking restrictions. Bylaws can also be made by public
corporations and certain companies for matters within their jurisdiction which involve the

34
ibid
35
Narasimhan, Interepretation of Indian Statutes (1952
18
public. This means that bodies such as the British airports authority and the railways can
enforce rules about public behaviour on their premises.36 An example of this can be the
smoking ban on the London underground system.

The reason why delegated legislation is necessary is entirely because the parliament does not
have time to consider and debate every small detail of complex regulations. Also the
parliament may not have the necessary technical expertise or knowledge required, for
example health and safety regulations in different industries need expert knowledge on the
other hand local parking regulations need local knowledge. Modern society has become very
complicated and technical so that it is impossible for members of parliament to have all the
knowledge which is required to draw up laws on controlling technology or ensuring
environment safety. It is better for the parliament to debate the main principles thoroughly
but leave the detail to be filled in by those who have expert knowledge of it.37

Ministers can have the benefit of further consultation before regulations are drawn up.
Consultation is particularly important for rules on technical matters, where it is necessary to
make sure that the regulations are technically accurate and workable. Some acts giving the
power to make delegated legislation set out that there must be consultation before the
regulations are created. Another advantage that delegated legislation has is that the process of
passing an act of parliament can take a long time even in an emergency as for delegated
legislation can be passed on very quickly and it can be amended and revoked easily when
necessary so the law can be kept up-to date and ministers can respond to new or unforeseen
situations by amending statutory instrument.38

Delegated legislation extends

Delegated legislation can be made by non-elected bodies and since there are so many people
with the power to make delegated legislation the parliament and judiciary have control.
Parliament initially has the control with enabling an act which sets the boundaries, within
which delegated legislation is to be made. Furthermore a delegated power scrutiny committee
was established in 1993 in the House of Lords to consider whether the provisions of any bills

36
P.M. Bakshi, An Introduction to Legislative Drafting. P.V Kane, History of Dharmsastra (1930
37
Brian Hunt, Plain language in Legislative Drafting: Is it Really the Answer?, Statute Law Review, Vol. 23,
No. 1, 2002
38
ibid
19
delegated legislative power inappropriately.39 It reports its findings to the House of Lords
before the committee stage of the bill but has no power to amend bills. The main problem
here is that there is no general provision that the regulations made under the enabling act of
have to be laid before parliament for the MP’s to consider them. A small number of statutory
instruments will be subject to an affirmative resolution this means that the statutory
instrument will not become law unless specifically approved by parliament. The need for an
affirmative resolution has to be included before enabling an act. Most other statutory
instruments will be subject to negative resolution which means that the relevant statutory
instrument will be law unless rejected by the parliament within 40days. 40 Individual ministers
can also be questioned about MP’s in parliament on the work of their departments and this
can include questions about proposed regulations.

A more effective check is the joint select committee on statutory instruments called the
scrutiny committee. This committee reviews all statutory instruments and where necessary
will draw the attention of both house of parliament to points that need further consideration.
However the review is a technical one and not based on policy. The main grounds for
referring a statutory instrument back to the house of parliaments are that it imposes a tax or
charge, (this is because only an elected body has such rights) it is unclear or defective in
some way, it appears to have gone beyond the powers given under the enabling legislation or
it make some unusual or unexpected use of those powers, and if it appears to have
retrospective effect which was not provided for by the enabling act. The scrutiny committee
can only report back its findings it has no power to alter any statutory instruments41

Delegated legislation can be controlled and challenged in the courts on the ground that it is
ultra vires basically what this means is that if it goes beyond the powers of which the
parliament has granted in the enabling act . Any delegated legislation which is rule to be ultra
vires is void and not effective this was shown in the case of R v Home Secretary ex parte fire
brigades union (1995) where changes made by the home secretary to the criminal injuries
compensation scheme were held to have gone beyond the power given to him in the criminal
act justice act (1988). Delegated legislation can be illustrated strict land v Hayes borough
council 1896 where a by law prohibiting the signing or reciting of any obscene song or ballad

39
P.M. Bakshi, An Introduction to Legislative Drafting. P.V Kane, History of Dharmsastra (1930
40
M.R. Reddi, delegated legislation, 1985 (5th edn., 2014
41
ibid
20
and the use of obscene language was held to be unreasonable and so ultra vires because it was
too widely drawn in that it covered acts done in private as well as those in public, also the
other case where delegated legislation has taken place are the cases of Aylesbury mushroom
case 1972.42

Criticism of use of delegated legislation

The criticism of use of delegated legislation is that it takes law making away from
democratically elected House of Commons and allows non-elected people to make the law.
This is acceptable provided there is sufficient control but as seen parliaments control is
limited. This criticism cannot be made of bylaws made by local authorities since these are
elected by local citizens. Another problem is that of sub-delegation which basically means
that the law making authority is handed down another level. This raises questions that our law
is made by civil servants and it is merely stamped by the minister department.

The other main problem with delegated legislation is that it is difficult to discover what the
present law is as large volume of delegated legislations can be made and lack of publicity is
another issue because majority of delegated legislation is made in private in contrast of public
debates of parliament. The final issue about delegated legislation and acts of parliament is
that obscure wording which can lead to difficulty in understanding the law.43

Overall in my conclusion delegated legislation is made by bodies other than parliament but
with the authority of parliament and there are three main bodies of delegated legislation,
which are order in council, statutory instruments, and by laws. The reason why delegated
legislation is present is because of the knowledge and expertise, it saves the parliament’s time
44
and it is more flexible than Acts of parliament. The disadvantages of delegated legislation
are that it is undemocratic it has the risk of sub-delegation also it can be made in large
volumes and lacks publicity. Delegated legislation is controlled by the parliament and by the
courts as the parliament have the stages of affirmative, negative resolutions and then the
scrutiny committee to deal with it however the courts have the judicial review and the
doctrine of ultra vires.

42
M.P. Jain, Parliamentary Control of Delegated Legislation in India, (1964)
43
P.M. Bakshi, An Introduction to Legislative Drafting. P.V Kane, History of Dharmsastra (1930
44
ibid
21
Parliament Sovereignty

Parliamentary law is sovereign over other forms of law in England and Wales. This means
that an Act of parliament can completely overrule any custom, judicial precedent delegated
legislation and or previous acts of parliament. The concept of sovereignty of parliamentary
law is based on democratic law making via the voting system. 45

However the ideal concept of democracy is lost because much of the drafting of parliament is
done by civil servants who are not elected. Another issue which rises is that the house of
lords is not an elected body. Dicey made three points of definition of parliamentary
supremacy which are that the parliament can legislate on any subject-matter, no parliament
can be bound by any previous parliament, nor can parliament press any act that will bind a
later parliament and finally no other body has the right to override or set-aside an Act of
parliament. Limitations of parliament sovereignty have been self-imposed by previous
parliament the main limitations of parliament is the membership of the European Union and
the effects of the human rights act 1998.

Overall Parliamentary Sovereignty can make and cancel any law with legal official
permission to do so in this country which is a very big advantage as there are many types of
laws made by different types of bodies and for parliament to have this power it shows order
and one law which governs the country also it is vital that parliament can pass down laws
which future parliament can amend. Overall in my opinion delegated legislation isn’t a threat
to parliament as It have mentioned earlier that the parliament can overrule any law which
includes delegated legislation but there are limitations which are the European Union and
human rights Acts which the parliament have self imposed.46
There are various methods that judges use to interpret law but there are three main rules
which the judges use these are the literal rule, the golden rule, and the mischief rule.

Advantages and Disadvantages of Delegated Legislation

45
M.V. PYLEE, Constitutions of the World, 2nd Edition, p. 232
46
Narasimhan, Interepretation of Indian Statutes (1952
22
The term delegated legislation is referred to the legislation created by the government
agencies including the Governor-General with authority from the Acts of Parliaments. This
will delegate the power to the agencies for practical reasons. Such reasons involve saving
parliamentary time or dealing with changing conditions as they occur. In order to get an idea
about this term, here are lists of advantages and disadvantages that can be used to ponder
upon its impact to the society.47

List of Advantages of Delegated Legislation

Saves Time for the Parliament

There are lots of overwhelming activities that the government should be concerned about. In
order to resolve the complexity and volume that the legislature needs to deal with, the power
needs to be delegated to the executive branch. This is because of the lack of time or the
capacity thereof in making laws for regulation. Hence, the creation of delegated legislation
should be essential to avoid bogging down into the burden of details.

Enables Flexibility
Rigidity in administration has been created by statutes, but the administrative legislation can
be more adaptable to varying circumstances. Thus, it will be useful in the branches of
administration liable for occasional changes and where the technical developments are
happening on a day-to-day basis.48

Dealing with Emergencies

Clothing the administrative agencies with needed discretion should be better in dealing with
possible contingencies. Such contingencies might result from the application of laws as the
legislature has been unable to foresee or allocate for everyone.

Done in Consultation with Affected Interests

In order to make legislation effective, it is important to have prior consultation regarding
interests that should be affected. This is because drafting of rules might and oftentimes

47
Ratanlal and Dhirajlal, constitution of india 2000 DELHI
48
Jay A. Sigler, A History of delegated legislation , The American Journal of Legal History, Vol. 7, No. 4 (Oct.,
1963), p. 283
23
doesn’t allow a conference between vested interests and the government. This can be affected
and would result in the agreement bound to voluntary compliance.49

The Average Legislator

Since an average legislator is not so acquainted with the difficulties of the modern legislation,
it is important to note that this legislator passes the bill in basic form and leaves details to be
accomplished by the executive branch.

Influence of Science and Technology

The impact of science and technology has resulted to the multiplication of functions of the
modern state. Thus, the power of the legislature has been enhanced considerably. As it is not
capable of coping with powers on the rise, the delegation of power in lawmaking has been
passed to the executive.

Sets Up New Standards

The increase in the delegated legislation can likewise be attributed to the requirement of
setting up new standards in social interest. Thus, expert minds are needed to make sure that
the national minimum regarding health education, housing, and sanitation has been due to
everybody.50

The Administrative Legislation Provides for Expert Legislation

The rules are being drafted by the experts familiar with actual conditions in appropriate
departments. With this practice, they are able to work better compared to the lay members
comprising the legislature.

List of Disadvantages of Delegated Legislation

Undemocratic Procedures
Legislation comes as a result to undemocratic processes and procedures. In terms of by-laws,
it is arguable that those are democratic considering they are created by elected bodies. Thus,

49
M.P. Jain, Parliamentary Control of Delegated Legislation in India, (1964)
50
M.R. Reddi, delegated legislation, 1985 (5th edn., 2014
24
they can only make by-laws in so far as they have been given authority to do so based on an
enabling Act of the local government.51

Apparent Lack of Debate

The apparent lack of debate and publicity that should be associated with a form of secondary
legislation has also been noticeable. The enabling Act should have been subject for some
public debate as well as consultation delegated by the legislation with its very nature to be a
lot wordy and more complex meaning which will not be that easy to be understood or be
accessible by the people.

Problem of Sub-Delegation
The arousal of sub-delegation may come when the responsible body for the creation of
legislation has not been able to deal with it directly. Thus, the creation of sub-delegation will
give the job to other parties. As a result, this will cause problems as the other parties should
not be accountable at the same way as those who created the legislation.52

The Wording of Delegated Legislation

Another problem when it comes to delegated legislation is the wording that can be obscure
and technical in nature that should make it hard to understand. This was the trait shared with
the Acts of Parliament.

Dependence on Individuals Making Claims to Review Legislation

One more limitation about delegated legislation is that it renders the courts unable to review
such legislation. Thus, it will become dependent to those who made the claim and brought the
matter to the courts’ attention. Since the courts don’t have any general authority to keep such
legislation to be reviewed, it poses a problem. This is because the process should be time-
consuming and costly. More so, reviewing the matter can only be conducted if the individual
claims do have the necessary funding. As a result, the effectiveness of the judicial review to
remedy this condition should be severely limited.53

51
M.V. PYLEE, Constitutions of the World, 2nd Edition, p. 232
52
Smith and Hogan’s subordinate jurisprudence 1999 NEW DELHI
53
Smith and Hogan’s subordinate jurisprudence 1999 NEW DELHI
25
Influence of the High Courts
In comparison to the primary legislation, the term delegated legislation can be influenced by
54
the High Court. Hence, they can quash the said legislation as it has been made by people
who aren’t directly elected. Thus, it could limit the control of their power. Nevertheless, it
can be dependent on the people making those claims as they bring matters in consideration of
the courts.
The time of the Parliament has been limited and the government will have a legislative
program that should keep the Parliament busy. Thus, the Parliament will have no time to
scrutinize the debate complex and regulations and technical rules. Perhaps the advantages and
disadvantages presented here can provide a clear understanding regarding the significance or
insignificance of delegated legislation. It may or may not be a significant factor for some, but
it should be a concern for everyone.

Legislative Control On Delegated Legislation

One of the most significant developments of the present century is the growth in the
legislative powers of the executive. The development of the legislative powers of the
administrative authorities in the form of the delegated legislation occupies very important
place in the study of the administrative law. We know that there is no such general power
granted to the executive to make law; it only supplements the law under the authority of
legislature. Such type of power is known as delegated legislation.

The underlying object of parliamentary control is to keep watch over the rule-making:
authorities and also to provide an opportunity to criticize them if there is abuse of power on
their part. Parliament has control in that the enabling or parent Act passed by Parliament sets
out the framework or parameters within which delegated legislation is made. In India, the
question of control on rule-making power engaged the attention of the Parliament.55

Every delegate is subject to the authority and control of the principal and the exercise of
delegated power can always be directed, corrected or cancelled by the principal. Hence
parliamentary control over delegated legislation should be a living continuity as a
constitutional remedy. The fact is that due to the broad delegation of legislative powers and

54
Narasimhan, Interepretation of Indian Statutes (1952
55
ibid
26
the generalised standard of control also being broad, judicial control has shrunk, raising the
desirability and the necessity of parliamentary control.
With regard to the control of the legislature over delegated legislation, M.P. Jain states: -

In a parliamentary democracy it is the function of the legislature to legislate. If it seeks to

delegate its legislative power to the executive because of some reasons, it is not only the right
of the Legislature, but also its obligation, as principal, to see how its agent i.e. the Executive
carries out the agency entrusted to it. Since it is the legislature which grants legislative power
to the administration, it is primarily its responsibility to ensure the proper exercise of
delegated legislative power, to supervise and control the actual exercise of this power, and
ensure the danger of its objectionable, abusive and unwarranted use by the administration.56

In U.S.A., the control of the Congress over delegated legislation is highly limited because
neither is the technique of “laying” extensively used nor is there any Congressional
Committee to scrutinise it. This is due to the constitutional structurization in that country in
which it is considered only the duty of courts to review the legality of administrative rule-
making.57

In England, due to the concept of Parliamentary sovereignty, the control exercised by

Parliament over administrative rule-making is very broad and effective. Parliamentary control
mechanism operates through “laying” techniques because under the provisions of the
Statutory Instruments Act, 1946, all administrative rule-making is subject to the control of
Parliament through the Select Committee on Statutory Instruments. Parliamentary control in
England is most effective because it is done in a non-political atmosphere and the three-line
whip does not come into operation.58

In India parliamentary control of administrative rule-making is implicit as a normal

constitutional function because the executive is responsible to the Parliament. There are three
types of control exercised:

Direct General Control

56
Narasimhan, Interepretation of Indian Statutes (1952
57
Kameswara Rao, General Clauses Act, 1897. Lord Bryce, Studies in History and Jurisprudence (1901)
58
M.P. Jain, Parliamentary Control of Delegated Legislation in India, (1964)
27
Direct but general control over delegated legislation is exercised:
(a) Through the debate on the act which contains delegation. Members may discuss anything
about delegation including necessity, extent, type of delegation and the authority to which
power is delegated.
(b) Through questions and notices. Any member can ask questions on any aspect of
delegation of legislative powers and if dissatisfied can give notice for discussion under Rule
59 of the Procedure and Conduct of Business in Lok Sabha Rules.
(c) Through moving resolutions and notices in the house. Any member may move a
resolution on motion, if the matter regarding delegation of power is urgent and immediate,
and reply of the government is unsatisfactory.59

Direct special control

This control mechanism is exercised through the technique of “laying” on the table of the
House rules and regulations framed by the administrative authority. The notable use of this
technique was made in the Reorganization Acts of 1939 to 1969, which authorised the
President to reorganise the executive government by administrative rule-making. In England
the technique of laying is very extensively used because all the administrative rule-making is
subject to the supervision of Parliament under the Statutory Instruments Act, 1946 which
prescribes timetable. The most common form of provision provides that the delegated
legislation comes into immediate effect but is subject to annulment by an adverse resolution
of either house60.
By Section 4 of the Statutory Instruments Act, 1946, where subordinate legislation is required
to be laid before Parliament after being made, a copy shall be laid before each House before
the legislation comes into operation. However, if it is essential that it should come into
operation before the copies are laid, it may so operate but notification shall be sent to the
Lord Chancellor and the Speaker of the House of Commons explaining why the copies were
not laid beforehand. Under Section 6 of the Statutory Instruments Act, 1946, the draft of any
statutory instrument should be laid before the parliament.61

59
Kameswara Rao, General Clauses Act, 1897. Lord Bryce, Studies in History and Jurisprudence (1901)
60
supra
61
M.R. Reddi, delegated legislation, 1985 (5th edn., 2014
28
Laying on Table

In almost all the Commonwealth countries, the procedure of ‘Laying on the Table’ of the
Legislature is followed. It serves two purposes: firstly, it helps in informing the legislature as
to what all rules have been made by the executive authorities in exercise of delegated
legislation, secondly, it provides a forum to the legislators to question or challenge the rules
made or proposed to be made.

Legal consequences of non-compliance with the laying provisions

In England the provisions of Section 4(2) of the Statutory Instruments Act, 1946 makes the
laying provision mandatory for the validation of statutory instruments. In India, however, the
consequences of non-compliance with the laying provisions depend on whether the
provisions in the enabling Act are mandatory or directory.62
In Narendra Kumar v. Union of India, the Supreme Court held that the provisions of Section
3(5) of the Essential Commodities Act, 1955, which provided that the rules framed under the
Act must be laid before both Houses of Parliament, are mandatory, and therefore Clause 4 of
the Non-Ferrous Control Order, 1958 has no effect unless laid before Parliament.63
However, inJan Mohammad v. State of Gujarat, the court deviated from its previous stand.
Section 26(5) of the Bombay Agricultural Produce Markets Act, 1939 contained a laying
provision but the rules framed under the Act could not be laid before the Provincial
legislature in its first session as there was then no functioning legislature because of World
War II emergency. The rules were placed during the second session. Court held that the rules
remained valid because the legislature did not provide that the non-laying at its first session
would make the rules invalid.64
Even if the requirement of laying is only directory and not mandatory, the rules framed by the
administrative authority without conforming to the requirement of laying would not be
permissible if the mode of rule-making has been violated.

Indirect control

62
ibid
63
Jay A. Sigler, A History of delegated legislation , The American Journal of Legal History, Vol. 7, No. 4 (Oct.,
1963), p. 283
64
Brian Hunt, Plain language in Legislative Drafting: Is it Really the Answer?, Statute Law Review, Vol. 23,
No. 1, 2002
29
Indirect control is exercised by Parliament through its Committees. With a view to strengthen
Parliamentary control over delegated legislation, Scrutiny Committees were established. In
UK and India, there are Standing Committees of Parliament to scrutinise delegated
legislation. In the USA, on the other hand, there is no equivalent to such committees, the
responsibility being diffused. The responsibility is shared but a host of committees – standing
committees in each House of Congress, committees on government operation in each house,
and some other joint bodies like the committee on atomic energy. In England, the Select
Committee on Statutory Instruments was established by the House of Commons in 1944. In
1950, the Law Minister made a suggestion for the establishment of a Committee of the House
on the pattern of the Select Committee on Statutory Instruments, 1944, to examine delegated
legislation and bring to the notice of the House whether administrative rule-making has
exceeded the intention of65 the Parliament or has departed from it or has affected any
fundamental principle.

Such a committee known as the Committee on Subordinate Legislation of Lok Sabha was
appointed on December 1, 1953. The main functions of the Committee are to examine:66
(i) Whether the rules are in accordance with the general object of the Act,
(ii) Whether the rules contain any matter which could more properly be dealt with in the Act,
(iii) Whether it is retrospective,
(iv) Whether it directly or indirectly bars the jurisdiction of the court, and questions alike.
The Committee has between 1953 and 1961, scrutinized about 5300 orders and rules has
submitted 19 reports.
There is also a similar Committee of the Rajya Sabha which was constituted in 1964.
It discharges functions similar to the Lok Sabha Committee.67
Recommendations by the committee on subordinated legislation
The Committee on Subordinate Legislation has made the following recommendation
in order to streamline the process of delegated legislation in India.
(i) Power of judicial review should not be taken away or curtailed by rules.
(ii) A financial levy or tax should not be imposed by rules
(iii) Language of the rules should be simple and clear and not complicated or ambiguous.

65
A.B. Kafaltiya, INTERPRETATION OF STATUTES ,2009,Lexus nexus
66
Narasimhan, Interepretation of Indian Statutes (1952
67
A.B. Kafaltiya, INTERPRETATION OF STATUTES ,2009,Lexus nexus
30
(iv) Legislative policy must be formulated by the legislature and laid down in the statute and
power to supply details may be left to the executive, and can be worked out through the rules
made by the administration.68
(v) Sub-delegation in very wide language is improper and some safeguards must be provided
before a delegate is allowed to sub-delegate his authority to another functionary.
(vi) Discriminatory rules should not be framed by the administration.
(vii) Rules should not travel beyond the rule-making power conferred by the parent Act.
(viii) There should not be inordinate delay in making of rules by the administration.
(ix) The final authority of interpretation of rules should not be with the administration.
(x) Sufficient publicity must be given to the statutory rules and orders.69
The working of the Committee is on the whole satisfactory and it has proved to be a fairly
effective body in properly examining and effectively improving upon delegated legislation in
India. Sir Cecil Carr aptly remarks: “It is evidently a vigorous and independent body.”

Effectiveness of Parliamentary Control over Delegated Legislation

In India the legislative control over administration in parliamentary countries70 like India is
more theoretical than practical. In reality, the control is not that effective as it ought to be.
The following factors are responsible for the ineffectiveness of parliamentary control over
delegated legislation in India:
(i) The Parliament has neither time nor expertise to control the administration which has
grown in volume as well as complexity.
(ii) The legislative leadership lies with the executive and it plays a significant role in
formulating policies.
(iii) The very size of the Parliament is too large and unmanageable to be effective.
(iv) The majority support enjoyed by the executive in the Parliament reduces the possibility
of effective criticism.
(v) The growth of delegated legislation reduced the role of Parliament in making detailed
laws and increased the powers of bureaucracy.71
(vi) Parliament’s control is sporadic, general and mostly political in nature.

68
M.R. Reddi, delegated legislation, 1985 (5th edn., 2014
69
Jay A. Sigler, A History of delegated legislation , The American Journal of Legal History, Vol. 7, No. 4 (Oct.,
1963), p. 283
70
ibid
71
Narasimhan, Interepretation of Indian Statutes (1952
31
(vii) Lack of strong and steady opposition in the Parliament has also contributed to the
ineffectiveness of legislative control over administration in India.
(viii) There is no automatic machinery for the effective scrutiny on behalf of the Parliament
as a whole; and the quantity and complexity are such that it is no longer possible to rely on
such scrutiny.72

If in India parliamentary control over delegated legislation is to be made a living continuity, it

is necessary that the role of the committees of the Parliament must be strengthened and a
separate law like the Statutory Instruments Act, providing for uniform rules of laying and
publication, must be passed. The committee may be supplemented by a specialised official
body to make the vigilance of delegated legislation more effective. Besides this other
measures should be taken to strengthen the control of Parliament over delegated legislation.

The Parliamentary control over delegated legislation in USA and India is not as effective as
in UK. In UK the laying off procedure is followed effectively because there all administrative
rule-making is subjected to the control of Parliament through the Select Committee on
Statutory instruments. In India the control is not very much effective. There are no statutory
provisions regarding ‘laying’ of delegated legislation. Though the working of the Scrutiny
committees is not very effective, yet they have proved to be an effective body in examining
and improving upon the legislative control over delegated legislation.73

72
A.B. Kafaltiya, INTERPRETATION OF STATUTES ,2009,Lexus nexus
73
M.P. Jain, Parliamentary Control of Delegated Legislation in India, (1964)
32
 CONCLUSION AND SUGGESTIONS
Delegated 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 authorityGenerally, 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
33
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.
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 Delegated laws are made by a person or body to
whom parliament has expressly delegated part of its law-making power by an act of
parliament. The laws go by many names-regulations, ordinances, statutory instruments,
secondary legislation, by-laws and proclamations, to name just a few. There have been 75
different varieties counted in Australia. There has been delegated legislation in England since
the fourteenth century.

In modern times, in all the countries we are considering, there has been a steady increase in
the use of delegated legislation. In Australia, for instance, in a typical year four times more
regulations are issued than acts are passed. In Britain the proportion is higher, with 2000
delegated instruments being used compared with only 70 or so acts.
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It would be idle to pretend that parliamentary control of delegated legislation is a burning
issue in the community or that most voters would even know what delegated legislation is.
For these reasons it is difficult to find members of any of the parliaments prepared to take
much interest in the matter. Nevertheless it is of great importance, for uncontrolled delegated
legislation offers a fertile field for government despotism and bossy interference by
bureaucrats. Delegated laws sometimes have much more impact on the lives of ordinary
citizens than do most acts of parliament.

There is no doubt that delegated legislation is necessary. Passing an act through parliament,
unless there are exceptional circumstances, is a lengthy and usually tedious business.
Complex details, but not principles, are best left to experts to draft and amend, particularly if
the legislation is in a field where there may be a need for urgent amendment at a time when
parliament is not sitting. Delegated legislation can be extremely complex. It was pointed out
in the House of Lords that: the Lord’s Prayer contains 56 words ... the Ten Commandments
comprise 197 words; the American Declaration of Independence has 304 words; but the
European Community Directive on the import of caramel and caramel products comprises 26
911 words.

Such verbosity is not confined to the northern hemisphere. In Australia a set of regulations
made on the automotive industry ran to more than 3000 pages. Legislation of such length and
detail simply cannot be handled by the ordinary procedures of legislatures.

An increasing problem is what is coming to be called quasi-legislation, the use of guidelines,

codes and policy directives with semi-legal status, using the authority given by an act which
delegates the power to direct, determine, notify, order, instruct, declare, issue or publish.

Many actions taken under these powers will be purely administrative, but others will involve
decisions on matters of policy, which certainly should be subject to scrutiny by the
legislature. The problems are threefold: to distinguish between matters of administration and
those of policy; to ensure that significant policy matters are brought to the attention of the
legislature, for their acceptance or disapproval; and to ensure that any such quasi-laws which
affect individuals are reasonably available to them.

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There are two common ways by which parliament can control delegated legislation. It can
require the delegated legislation to be laid before parliament and that it not come into effect
until parliament approves it-either by an affirmative resolution, or by the lapse of a specific
period without the legislation having been disallowed. Alternatively, the delegated legislation
may come into immediate effect, but may be disallowed by the parliament within a specified
time. (These two are the most common methods, but there are many variants.)

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 REFERENCE / BIBLIOGRAPHY
 Parliamentary Practice. Michele M Asprey, Plain Language for Lawyers (2003).
 M.P. Jain, Parliamentary Control of Delegated Legislation in India, (1964).
 A.B. Kafaltiya, INTERPRETATION OF STATUTES ,2009,Lexus nexus
 Editorial, Clarity of the Law Again, Statute Law Review, Vol. 14, No. 1, 1993.
Editorial, Lucid Law II, Vol. 22, No. 1, 2001.
 Edward Donelan, Recent developments in statute law revision in Ireland, Vol. 22, No.
1,2001.
 Halsbury, Laws of England, Vol. XXVII. Harlow, History of Legislative Methods
(1917). Herbert Morrison, Government and Parliament (1959).
 Halsbury’s Laws of India, Criminal Law-II, 296 Vol. 5(2) (2006
 Henry Campbell Black, BLACK‟S LAW DICTIONARY
 Hewart, New Despotism. Hodgson, Errors in the use of E,nglish 7th Ed. Ilbert,
Legislative Methods and Forms (1901).
 Ilbert, Methods of Legislation (1925).
 Jay A. Sigler, A History of delegated legislation , The American Journal of Legal
History, Vol. 7, No. 4 (Oct., 1963), p. 283
 Joseph Schacht, Introduction to delegated legislative Law (1964).
 Kameswara Rao, General Clauses Act, 1897. Lord Bryce, Studies in History and
Jurisprudence (1901). Luce, Legislative Principles (1930).
 Lawrence Newman, “delegated legislation”, [1960], new man publicationsp.252
 M.P Jain, INDIAN CONSTITUTIONAL LAW 2001 law delhi
 M.P. Jain & S.N. Jain, PRINCIPLES OF criminal law ,2006
 M.R. Reddi, delegated legislation, 1985 (5th edn., 2014)
 M.V. PYLEE, Constitutions of the World, 2nd Edition, p. 232
 Max Muller, Sacred Books of the PLast. Maxwell, Interpretation of Statutes (1962),
 Narasimhan, Interepretation of Indian Statutes (1952).
 Odgers, Construction of Deeds and Statutes (1956).
 P.A. Bromhead, Private Member's Bills in the British Parliament (1956).
 P.M. Bakshi, An Introduction to Legislative Drafting. P.V Kane, History of
Dharmsastra (1930).
 P.V. Ramakrishna, administrative law in india, Vol. 2, 1399 (13th edn., 2011 LEXUS
 Patrick Birkinshaw, administrative law 2006, new delhi house publications
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 Ratanlal and Dhirajlal, constitution of india 2000 DELHI
 Ronald Jay Allen, Bard Ferrall & John Ratnaswamy, The Constitutional
Interpretation and the Limits University Law Review, Vol. 26, No.1, Page 282
 S.C. Sarkar, delegated legislation 2003 JAIPUR

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