General principles of delegated legislation

Introduction

According to the traditional theory, the function of the executive is to administer the law enacted by the legislature, whereas in the ideal State, the legislative power must be exercised exclusively by the legislators who are directly responsible to the electorate, but however still the executive apart from the pure administrative functions, does perform many legislative and judicial functions as well.

 Meaning of Delegated legislation

Though defining the term delegated legislation has posed difficult to many scholars, thus unable to give precise meaning, the following words may ascribe the meaning of the concept;

‘When the function of legislation is entrusted to organs other than the legislature itself, the legislation made by such organs is called delegated legislation’ (See: C.K. Takwani: Lectures of Administrative Law, p.58). According to M.P. Jain (See: M.P. Jain: Treatise on Administrative Law, 1970, p.166), the term delegated legislation is used in two senses, thus it may mean;

ü  Exercise by a subordinate agency of the legislative power delegated to it by legislature.

The authority making the legislation is subordinate to legislature. The legislative powers are exercised by the authority other than the legislature in exercise of the powers delegated or conferred on them by legislature itself. This is also known as subordinate legislation, because the powers of the authority which makes it are limited by the statute which conferred the power and consequently, it is valid only insofar as it keeps within those limits.

ü  The subsidiary rules themselves which are made by the subordinate authority in pursuance of the powers conferred on it by the legislature.

In this second connotation, delegated legislation means and includes all rules, regulations, by-laws, orders, etc.

Thus, the statute enacted by the legislature conferring the legislative power upon the executive is known as the ‘parent Act’ or ‘primary law’ and the rules, regulations, by-laws, orders, etc. made by the executive in pursuance of the legislative powers conferred by the legislature are known as subordinate laws or subsidiary laws or the ‘child legislation’

Reasons for Growth of Delegated Legislation

There are many factors which have made the growth of delegated legislation inevitable, the major reason being the change of traditional theory of laissez faire to welfare State policy. The following are the factors which are responsible for growth of delegated legislation as discussed by the Committee on Ministers’ Powers

ü  Pressure upon Parliamentary time

Since there have been the widening of the scope of functioning in welfare States, therefore the legislature is not able to fulfill its duty according to time. There are a lot of issues which need laws and since legislature cannot cater the need in details, thus the legislature formulates the general policy, i.e. the skeleton and empowers the executive to fill in the detail.

ü  Technicality

Sometimes, the subject matter on which legislation is required is so technical in nature that the legislator, being himself a common man cannot be expected to appreciate and legislate on the same, and thus the assistance of experts may be required.

ü  Flexibility

A legislative process by legislature is not as flexible as of executive. In enactment of an Act it is not possible for the legislature to contemplate all the contingencies, and some provision is required to be made for these unforeseen situations demanding exigent action, whereas a legislative amendment is a slow process rather than the delegated legislation.

ü  Experiment

The use of delegated legislation allow practical experiment whereas the executive would have to employ method which permits rapid utilization of experience and implementation of necessary changes in application of the provisions in the light of such experience.

ü  Emergency

In circumstance of emergency the delegated legislation is very useful method to make sure the things run smoothly. It is very difficult to convene the meeting of legislature in every occasion of emergency. For example in time of wars, drought, famine, national disasters, there is a need of immediate remedial actions.

ü  Complexity of modern administration

In current States which are in welfare philosophy, there is tremendously increase of States’ functioning and thus made complexities in modern administration. Therefore it is necessary to resort to delegation of legislative powers so as to give wide powers to various authorities on suitable occasions.

Forms of Delegated Legislation

Delegated legislation may take several forms. They may be normal or of exceptional type; they may be usual or unusual; positive or negative; skeleton or Henry VIII clause. Thus, broad speaking, delegated legislation may be classified on the following principles;

ü  Title-based classification

Here the delegated legislation may be in forms of Rules, regulations, By-laws, Notifications, Schemes, Orders, Ordinances, Directions, etc.

ü  Discretion-based classification

Here, discretion may be conferred on the executive to bring an Act into operation on fulfillment of certain conditions. Such legislation is called ‘conditional’ or ‘contingent’ legislation.

ü  Purpose- based classification

This classification is based on nature and extent of power conferred and purposes for which such power can be exercised. Thus, the executive can be empowered to fix appointed day for the Act to come into force, to supply details, to extend the provisions of the Act to other areas, to include or to exclude operation of the Act to certain territories, persons, industries, commodities, to suspend or to modify the provisions of the Act, etc.

ü  Authority-based classification

A statute may also empower the executive to delegate further powers conferred on it to its subordinate authority. This is ‘sub-delegation’.

 The concept of Delegated Legislation in England

In England, Parliament is supreme whereas it has the duty to enact laws. However the concept of delegated legislation started to develop at the eve of 19th century as the role of subordinate Government become more and more important because of the enactment of Reform Bill in the year 1832. The reason for the growth of delegated legislation as like other nations are the same, thus parliament having no enough time to deal with matters in details, whereas  complexity, technicalities, emergency and expediency compelled the Parliament to delegate its legislative power to government.

Moreover England witnessed the tremendous increase of delegated legislation during the two world wars, whereas in various fields, the power to regulate was granted to government, such as housing, education, health, pension, employment, etc. This excessive delegated legislation led to growth of criticisms against it, and thus in 1929 the Committee on Ministers Powers’ had to study the issue and offer suggestion, that ‘the system of delegated legislation is both legitimate and constitutionally desirable for certain purposes, within certain limits, and under certain safeguards’ (see: Committee on Ministers’ Powers Report, 1932, p.62)

 The Concept of Delegated Legislation in Tanzania

v  A:  During Colonial Period

After the World War I, Tanganyika was declared as protectorate territory and was supervised by British. In 1920, the British authorities promulgate the Tanganyika Order in Council (TOC), which established the office of Governor, Executive Council and High Court and Subordinate Courts thereto, whereas it did not provide for an independent and separate legislative organ, this led to the Governor exercising the power of making law in representing His/her Majesty. However, in 1926 the Governor’s legislative power was transferred to Legislative Council (LEGICO) as established by Tanganyika (Legislative Council) Order in Council of 1926.

Under TOC, the Executive Council (equivalent to cabinet) had following roles;

ü  To advice the Governor in matter of policy

ü  To enact, as a delegate of the Legislative Council, the greater party of subordinate legislation of the territory.

ü  After Independence

Tanzania attained her independence in 1961 and have undergone various constitutional changes, however for the purpose of the subject matter, the latest version of constitution would be referred, thus the Constitution of United Republic of Tanzania of 1977. Article 4 and 64 (1) of the Constitution declares that the parliament is vested with legislative power as to enact laws to be applicable in the United republic of Tanzania. However the Constitution also shows the possibility of the Parliament to delegate its legislative power to other organ, or person under Article 97(5) as it states ‘the provisions of this Article or Article 64 of this Constitution shall not prevent the Parliament from enacting laws making provisions conferring on any persons or department of Government the power to make regulations having the force of law on any regulation made by any person, or any department of the Government’. Also the Interpretation of Laws Act [CAP 1.R.E.2002] provides for provisions relating to Subsidiary legislation under Part VI of the Act.

 The Concept of Excessive Delegation

As it is well settled that essential and primary legislative functions must be performed by the legislature itself and they cannot be delegated to the executive. Essential legislative functions consist of determination of legislative policy and its formulation as a rule of conduct. Once essential legislative powers are exercised by the legislature, all ancillary and incidental functions can be delegated to the executive. (see: Delhi Laws Act, Re, AIR 1951 SC 332)  As it is also known that the parliament does not possess the legislative power as an inherent and original power, but such power have been delegated by the constitution and thus cannot delegate such power to other organ without reasonable grounds and proper procedure, if done without due process such delegation would be rendered unconstitutional.

However, there are sometimes the parliament can abandon its primary function of legislative power, this is known as abdication. Abdication means abandonment of sovereignty, happens when the legislature does not legislate and entrusts that primary function to the executive or to an outside agency. Where there is abdication it amount to excessive delegation.

The question of whether there is excessive delegation or not, has to be examined in the light of three broad principles:-

ü  Essential legislative functions to enact laws and to determine legislative policy cannot be delegated.

ü  In the context of modern conditions and complexity of situations, it is not possible for the legislature to envisage in detail every possibility and make provisions for them. Therefore, the legislature has to delegate certain functions provided it lays down legislative policy.

ü  If the power is conferred on the executive in the manner which is lawful and permissible, the delegation cannot be held to be excessive merely on the ground that the legislature could have made more detailed provisions.

Whereas a statute challenged on the ground of excessive delegation must be subjected to two tests:-

ü  Whether it delegates essential legislative function; and

ü  Whether the legislature has enunciated its policy and principle for the guidance of the executive

Functions which can be Delegated (Permissible Delegation)

ü  Commencement

A lot of statutes contain an ‘appointed day’ clause, which empowers the government to appoint a day for the Act to come into force, thus in such cases, the operation of the Act depends on the decision of the Government.

ü  Supplying  details

After the legislative policy has been formulated by the legislature, the function of supplying details may be delegated to the executive for giving effect to the policy.

ü  Inclusion

Sometimes, the legislature passes an Act and makes it applicable in the first instance, to some areas and classes of persons, but empowers the government to extend the provisions thereof to different territories, persons or commodities.

ü  Exclusion

There are some statutes which empower the Government to exempt from their operation certain persons, territories, commodities, etc.

ü  Suspension

Some statutes authorize the Government to suspend or relax the provisions contained therein

ü  Application of existing laws

Some statutes confer the power on the executive to adopt and apply statutes existing in other areas without modifications only with incidental changes to a new area. There is no unconstitutional delegation in such cases, as the legislative policy is laid down in the statute by the competent legislature.

ü  Modification

Sometimes, provision is made in the statute authorizing the executive to modify the existing statute before application. This is drastic power as it amount to an amendment of the Act, which is legislative act, but however, this flexibility is necessary to deal with local conditions.

ü  Prescribing punishments

In some cases the legislature delegates to the executive the power to take punitive action

ü  Framing of rules

A delegation of power to frame rule, by-law, regulations, etc is not unconstitutional, provided that the rules are required to be laid before the legislature before they come into force and provided further that the legislature has power to amend, modify or repeal them.

ü  Removal of difficulties (Henry VII clause)

Power is sometimes conferred on the Government to modify the provisions of the existing statutes for the purpose of removing difficulties. When the legislature passes as Act, it cannot foresee all the difficulties which may arise in implementing it. Therefore the executive is empowered to make necessary changes to remove such difficulties

Functions which cannot be Delegated (Impermissible Delegation)

ü  Esssential legislative functions, Legislative policy must be laid down by the legislature itself and by entrusting this power to the executive; the legislature cannot create a parallel legislature.

ü  Repeal of law, Power to repeal a law is essentially a legislative function, and therefore, delegation of power to the executive to repeal a law is excessive delegation and is ultra vires.

ü   Modification,  Power to modify the Act is an essential legislative function; therefore, delegation of power to modify an Act without any limitation is not permissible.

ü  Exemption, A legislature cannot delegate the power of exemption to the executive without laying down the norms and policy for the guidance of the latter.

ü  Removal of difficulties, Under the guise of enabling the executive to remove difficulties, the legislature cannot enact a Henry VIII clause and thereby delegate essential legislative functions to the executive, which could not otherwise have been delegated.

ü  Retrospective operation, Giving an Act retrospective effect is essentially a legislative function and it cannot be delegated.

ü   Future Acts, The legislature can empower the executive to adopt and apply the laws existing in other counties, but it cannot delegate the power by which the executive can adopt the laws which may be passed in future.

ü   Ouster of jurisdiction of Courts, The legislature cannot empower the executive by which the jurisdiction of courts may be ousted.

ü  Offences and penalty, The making of a particular act or omission into an offence and prescribing punishment for it is an essential legislative function and cannot be delegated. However, if the legislature lays down the standards or principles to be followed by the executive in defining an offence and provides the limits of penalties, such delegation is permissible.

References
1. C.K. Takwani: Lectures of Administrative Law 2015
2. M.P. Jain: Treatise on Administrative Law, 1970

Credit
1. https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Odgers_Australian_Senate_Practice/Chapter_15

2. https://www.jstor.org/stable/43949623

3. https://www.lawteacher.net/free-law-essays/constitutional-law/delegated-legislation-is-law.php