Delegated Legislation Essay
An enabling Act of parliament authorises somebody else or another
organisation other than parliament to make laws. This form of
legislating is called 'delegated legislation'. These powers that have
been granted to certain bodies are exercised through statutory
instruments, orders in Council, or bye-laws. Examples of delegated
legislation by a local authority are the legislating of a Bye-law,
made by Bristol city council concerning the fouling of pavements by
dogs. This delegated legislation by the council stemmed from the Local
government Act 1972. An example of an individual possessing delegated
legislative powers was where the secretary of State created Motor
cycles (protective Helmets) Regulations 1980, stemming from the parent
act - Road Traffic act 1988.
When parliament delegates legislation, the powers by the delegated
authority are chosen by parliament when setting the enabling act.
Before an individual, such as a government minister or another
authority that possesses legislative powers, can make an act, they may
have to undergo consultations with specified organisations or people.
This allows them to point out any faults with the proposals. When
ministers are delegated legislative power, parliament requires them to
submit the statutory instrument or a draft of it so select committees
from both houses can scrutinise it carefully. These committees report
back to parliament with its investigations, paying particular
attention to statutory instruments that impose taxes; makes a charge
on the Revenue; appears to be immune from court challenges; purports
to operate retrospectively; has been unreasonably delayed in
publication; makes unusual or unexpected use of powers granted;
appears to be ultra vires the parent Act-extras that have been added
but are not permitted; and a statutory instrument that appears to be
badly drafted leading to confusion.
For parliamentary approval the enabling Act may require an affirmative
resolution of each house, especially where powers are wide ranging as
in the Human Rights act 1998. The Statutory instrument may be subject
to annulment by either house within 40 days. This is the usual process
when parliament is giving its approval, but few are actually debated
and hardly ever annulled. When legislative powers are granted to
individuals other than ministers under the enabling Act, Ministerial
approval is a required part of the legislative process.
As well as parliament, the judiciary possess control over parties who
have legislative powers. The High Court has an "inherent
jurisdiction", to monitor and supervise anyone exercising delegated
power. This process occurs in the Administrative Court, which is part
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In India, the question of control on rule-making power engaged the attention of the Parliament. Under the Rule of Procedure & Conduct of Business of the House of the People provision has been made for a Committee which is called ‘Committee on Subordinate Legislation’.
The First Committee was constituted on 1st December, 1953 for-
(i) Examining the delegated legislation, and
(ii) Pointing out whether it has-
(a) Exceeded or departed from the original intentions of the Parliament, or
(b) Effected any basic changes.
Originally, the committee consisted to 10 members of the House and its strength was later raise to 13 members. It is usually presided over by a member of the Opposition. The Committee:
(i) Scrutinizes the statutory rules, orders, bye-laws, etc., made by any-making authority, and
(ii) Report to the House whether the delegated power is being properly exercised within the limits of the delegated authority, whether under the Constitution or an Act of Parliament.
It further examines whether:
(i) The Subordinate legislation is in accord with the general objects of the Constitution or the Act pursuant to which it is made;
(ii) It contains matter which should more properly be dealt within an Act of Parliament;
(iii) It contains imposition of any tax;
(iv) It directly or indirectly, ousts the jurisdiction of the courts of law;
(v) It gives retrospective effect to any of the provisions in respect of which the Constitution or the Act does not expressly confer any such power;
(iv) It is constitutional and valid;
(vii) In involves expenditure from the Consolidated Fund of India or the Public Revenues;
(viii) Its form or purpose requires any elucidation for any reason;
(ix) It appears to make some unusual or unexpected use of the powers conferred by the Constitution or the Act pursuant to which it is made; and
(x) There appears to have been unjustifiable delay in its publication or its laying before the Parliament.
The Committee of the first House of the People submitted a number of reports and continues to do useful work. The Committee considered the question of bringing about uniformity in the provisions of the Acts delegating legislative powers.
It made certain recommendations in its First report (March, 1954) which it later modified in its Third Report (May, 1955) after noting the existing divergent practices, due to recent character of the Parliament control of delegated legislation in India. The following are the modified recommendations:
1. That, in future, the Acts containing provisions for making rules, etc., shall lay down that such rules shall be laid on the Table as soon as possible.
2. That all these rules shall be laid on the Table for a uniform and total period of 30 days before the date of their final publication.
But where it is not deemed expedient to lay any rule on the Table before the date of publication, such rule may be laid as soon as possible after publication.
An Explanatory Note should, however, accompany such rules at the time they are so laid, explaining why it was not deemed expedient to lay these rules on the Table of the House before they were published.
3. That, in future, the Acts authorising delegation of rulemaking power shall contain express provisions that the Rules made there under shall be subject to such modifications as the House may like to make.
On the recommendation of the Committee, the Bills are generally accompanied with Memoranda of Delegated Legislation in which (i) full purpose and effect of the delegation of power to the subordinate authorities, (ii) the points which may be covered by the rules, (iii) the particulars of the subordinate authorities or the persons who are to exercise the delegated power, and (iv) the manner in which such power has to be exercised, are mentioned.
They point out if the delegation is of normal type or unusual.
The usefulness of the Committee lies more in ensuring that the standards of legislative rule-making are observed that in merely formulating such standards. It should effectively point out the cases of any unusual or unexpected use of legislative power by the Executive.
Parliamentary control of delegated legislation is thus exercised by:
(i) Taking the opportunity of examining the provisions providing for delegation in a Bill, and
(ii) Getting them scrutinised by parliamentary committee of the Rules, Regulations, Bye-laws and orders,
When the Bill is debated:
(i) The issue of necessity of delegation, and
(ii) The contents of the provisions providing for delegation can be taken up.
After delegation is sanctioned in an Act, the exercise of this power by the authority concerned should receive the attention of the House of the Parliament. Indeed, it is this later stage of parliamentary scrutiny of the delegated authority and the rules as framed in its exercise that is more important.
In a formal sense, this is sought to be provided by making it necessary that the rules, etc., shall be laid on the Table of the House.
The members are informed of such laying in the daily agenda of the House. The advantage of this procedure is that members of both the Houses have such chances as parliamentary procedure and arrangements afford of passing for-
(1) The modification or the repeal of the enactment under which obnoxious rules and orders are made, or
(ii) Revoking rules and orders themselves.
The matter may be discussed in the House during the debates or on special motions.
The provisions for laying the rule, etc., are being made now practically in every Act which contains a rule making provision. Such provisions are enacted in the following form:
(1) The Government may by notification in the official Gazette, make rules for carrying out all or any of the purposes of this Act.
(2) Every rule made under this section shall be laid, as soon as may be, after it is made, before each House of Parliament while it is in session for a total period of fourteen days which may be comprised in one session or in the successive sessions, and, if, before the expiration of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or in the annulment of the rule, the rule shall thereafter have effect only in such modified form or shall stand annulled, as the case may be, so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.