Growth of Delegated Legislation | Administrative Law - CLAT PG PDF Download

Introduction

The executive traditionally administers laws made by the legislature, which is ideally responsible for enacting laws directly accountable to the electorate. However, there is a growing trend in democratic countries where a significant portion of legislation is generated outside the legislature.

• Besides its core administrative role, the executive also performs legislative and judicial functions. A large part of legislation is created by the executive as a delegate of the legislature, known as 'Delegated Legislation.'
• In theory, only the Parliament can make laws in England. However, in practice, the government plays a major role in law-making, subject to parliamentary oversight. This includes a substantial amount of subordinate or delegated legislation, such as orders in Council, departmental circulars, rules, regulations, and bye-laws made under statutory authority.
• In the United States, despite the theoretical rejection of delegated legislation, the legislature has, in practice, delegated legislative powers to the executive due to the rapid increase in administrative legislation.
• In India, between 1973 and 1977, Parliament passed around 300 statutes, while over 25,000 statutory rules and orders were issued. This highlights that delegated legislation is so extensive that a statute book would be incomplete and misleading without it.

Definition of Delegated Legislation

• Delegated legislation lacks a precise definition and its scope is often unclear. Most legislation today is issued by the executive as delegated legislation. Parliament sets the policy framework and delegates the authority to implement it within the established guidelines.
• According to Salmond, delegated legislation is that which comes from any authority other than the sovereign power and relies on a superior authority for its validity.
• Mukherjea describes delegated legislation as a confusing term that serves as a cover for legislators, a shield for administrators, and a point of interest for constitutional jurists.
• According to M.P. Jain and S.N. Jain, delegated legislation can refer to:
  • Exercise of legislative power by a subordinate agency as delegated by the legislature.
  • The subordinate rules made by the agency under the power conferred by the legislature.

Subordinate Legislation

• Subordinate legislation refers to rules, regulations, orders, or bye-laws made by authorities other than Parliament, empowered by an Act of Parliament.
• Examples of subordinate legislation include rules made by local authorities under the Local Government Act or regulations made by the Environment Agency under the Environmental Protection Act.
• Subordinate legislation must comply with the limits set by the parent Act and is valid only within those boundaries.

Historical Development

• Delegated legislation has grown rapidly in the twentieth century across global legal systems, but it is not a new concept.
• Historically, there has been delegation of legislative power from the Legislature to the Executive since the enactment of statutes by Parliament.
• Early examples include the statute of 1337, which restricted wool export unless authorized by the King and his Council, and the use of the Henry VIII Clause in the fifteenth and sixteenth centuries.
• The Statute of Sewers in 1531 allowed Commissioners to create, amend, and repeal laws, demonstrating a blend of legislative, administrative, and judicial powers.
• The Mutiny Act of 1717 granted the Crown the authority to legislate for the Army without Parliamentary involvement.
• In the nineteenth century, delegated legislation became more prevalent due to social and economic reforms.
• By the twentieth century, the volume of delegated legislation produced by the executive far surpassed that of enactments by competent legislatures.

Reasons for the Growth of Delegated Legislation

The rapid growth of delegated legislation in modern democratic states is attributed to several factors:

1. Pressure on Parliamentary Time

• The expanding scope of state activity has led to an overwhelming volume of legislation.
• Legislatures often lack the time to thoroughly discuss all matters, even if they were to sit continuously.
• As a solution, legislatures establish general policies and empower the executive to fill in the details through rules and regulations.
• Delegated legislation is seen as a means to relieve the legislative burden, allowing minor matters to be addressed while the legislature focuses on core issues.

2. Technicality

• Some legislative subjects are highly technical, requiring expertise beyond that of the average legislator.
• Legislators may not possess the specialized knowledge needed to address complex issues such as gas, atomic energy, drugs, or electricity.
• Delegating legislative power to experts ensures that technical matters are handled appropriately.

3. Flexibility

• When enacting legislation, it is impossible to anticipate all potential contingencies.
• Delegated legislation allows the executive to respond swiftly to unforeseen situations, such as adjustments in bank rates or police regulations.
• Many statutes include 'removal of difficulty' clauses, empowering the administration to overcome challenges through delegated authority.

4. Experimentation

• Delegated legislation enables the executive to conduct experiments and make adjustments based on experience.
• This approach allows for the rapid implementation of changes in response to practical experience, such as in road traffic regulations.
• By learning from past applications, necessary modifications can be made through delegated legislation.

5. Emergency Situations

• In times of emergency, swift action is crucial, and the legislative process may not be equipped to provide urgent solutions.
• Delegated legislation offers a convenient remedy in situations like war, national emergencies, epidemics, floods, inflation, or economic depression.
• During crises, the executive is granted special powers to address urgent needs effectively.

6. Complexity of Modern Administration

• The complexity of contemporary administration and the expansion of state functions into economic and social spheres necessitate new forms of legislation.
• Traditional legislative processes may be hindered by vested interests, making it challenging to achieve regulatory goals over private trade and business.
• Empowering the executive to create subordinate legislation within specified limits has become essential for the practical needs of the modern welfare state.
• The rapid growth of delegated legislation in various countries reflects its indispensability in the current administrative landscape.