It is accepted at all hands that a rigid application of the doctrine of non delegability of powers or separation of powers is neither desirable nor feasible in view of the new demand on the executive. The new role of the welfare state can be fulfilled only through the use of greater power in the hands of the government, which is most suited to carry out social and economic tasks. The task of enhancing the power of the government to enable it to deal with the problems of social and economic reconstruction can be effectively and efficiently accomplished through the technique of delegation of legislative power to it. Thus it can be clearly observed that pragmatic considerations have prevailed over theoretical objections.
Therefore, the position has been shifted from one of total objection to the issue of the permissible limits of valid delegation. Legislative delegation raises the issue of delegable and non-delegable legislative powers. There is no agreed formula with reference to which one can decide the permissible limits of delegation. However, as a rule, it can be said that the legislature cannot delegate its general legislative power and matters dealing with policy.
The legislature after formulating the fundamental laws can delegate to administrative agencies the authority to fill in gaps which is an authority necessary to carry out their purposes. The matters which are appropriate for delegation are such matters as procedures for the implementation of the substantive provisions contained in the principal legislation. This indicates that only the subsidiary part of the legislation could be delegated to administrative agencies so as to enable them to fill any available gaps;i.e. the legislative body ought to state an intelligible principle and that the executive branch would merely fill in the details. Subordinate legislation can cover only subject matters delegated expressly in the principal legislation.
- Delegation of some part of legislative powers has become a compulsive necessity due to the complexities of modern legislation.
- Essential legislative functions cannot be delegated by the legislature.
- After the legislature has exercised its essential legislative functions, it can delegate non-essentials, however, numerous and significant they may be.
- The delegated legislation must be consistent with the parent act and must not violate legislative policy and guidelines. Delegatee cannot have more legislative powers than that of the delegator.
Definition
When an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the legislature, it is called subordinate legislation or delegated legislation. Halsbury’s Laws of England, 4th ed.
Delegated legislation is that which proceeds from any authority other than the sovereign power, and is, therefore, dependent for its continued existence and validity on some superior or supreme authority. Salmond.
Scope
Delegated legislation must not:
(i) exceed the parent/enabling Act made by the legislature
(ii) conflict with the enabling Act, and
(iii) alter the necessity, special features, make or polices of the Act.
Forms
- Title based classification
- Discretion based classification
- Purpose based classification
- Authority based classification
- Nature based classification
Title based classification
(i) Rule– A rule made under any Act, and includes regulation made similar to a rule under any Act . – Nepal Law Interpretation Act, 2010.
The law or rule made by the executive or other concerned authority in exercise of power conferred by the legislature in an Act for fulfillment of the objectives of the Act.
(ii) Regulation– The term relates to a situation where power is given to fix the date for the enforcement of an Act or to grant exemptions from the Act or to fix prices, etc. (more of substantive nature).
(iii) By-law– Regulations, ordinances, rules or laws adopted by an association or corporation or the like for its internal governance. By laws define the rights and obligations of various officers, persons or groups within the corporate structure and provides rules for routine matters such as calling meetings and the like.- Black’s Law Dictionary.
(iv) Order– This term is used to cover various forms of legislative and quasi-judicial decisions. Orders may be specific or general. The former refers to administrative action while the latter refers to administrative rule-making.
(v) Direction-It is an expression of administrative rule-making under the authority of law or rules or orders made thereunder. These may be recommendatory or mandatory. If mandatory, these have the force of law.
(vi) Scheme: The term refers to a situation where the law authorizes an administrative agency to lay down a framework within which the detailed administrative action is to proceed.
Discretion based classification
(i) Contingent or conditional legislation
A statute that provides control but specifies that they are to go into effect only when a given administrative authority finds the existence of conditions defined in the statute itself. It is fact-finding, not discretionary.
Such as,
- future applicability left to the subjective satisfaction of the delegate as to indicating the proper time
- Act enforced but power to withdraw the same from operation delegated to satisfaction of the delegate.
- Power exercisable upon the delegate’s satisfaction of objective facts by a class of people seeking benefit of the exercise of such power to deprive the rival class of persons of statutory benefits.
Last category of conditional legislation attracts the principles of natural justice.
Though delegated legislation as such does not attract the principles of natural justice, but it applies in the case of conditional legislation where a person is deprived of his statutory rights.
Contingent legislation classification is linked with the case of Field v. Clark (US, 1892)
(ii) Subordinate legislation
The process consists of the discretionary elaboration of rules and regulations.
The distinction is one of discretion. ‘It may be noted that this distinction is hardly real. In contingent legislation also, a certain amount of discretion is always present. The contingent legislation formula is a fiction developed by the U.S. Supreme Court to get away from the operation of separation of powers.
Whereas conditional legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of excessive delegation, delegated legislation does confer some legislative power on some outside authority and is, therefore, open to attack on the ground of excessive delegation.
Purpose based classification
On the basis of different purposes it is made to serve.
(i) Enabling Act: such Acts contain an ‘appointed day’ clause under which the power is delegated to the executive to appoint a day for the Act to come into operation.
(ii) Extension and Application of Act: extension and application of Act in respect of a territory or for a duration of time or for any other such object.
(iii) Dispensing and Suspending Acts: power is delegated to the administrative authority to make exemptions from all or any provision of the Act in a particular case or class of cases or territory, when at the discretion of the authority, circumstances warrant it.
(iv) Alteration Acts: Alteration is a broad term and includes both modification and amendment.
The power of modification is limited to consequential changes, but if overstepped it suffers challenge on the ground that it is not within the legislative intent of modification.
Sometimes includes the power to remove difficulties so that the various statutes may coexist.
Amendment- e.g. power to change the schedule of an Act.
(v) Taxing Act: The policy of the taxing statute must be clearly laid down by the legislature.
(vi) Supplementary Acts: Power is delegated to the authority to make rules to carry out the purposes of the Act.
(vii) Approving and Sanctioning Acts: Power is delegated not to make rules, but to approve the rules framed by another specified authority.
(viii) Classifying and Fixing Standard Acts: Power is given to administrative authority to fix standard of purity, quality or fitness for human consumption. Courts have upheld on grounds of necessity.
(ix) Penalty for Violation of Acts: Power may be delegated to administrative authority to prescribe punishment for violation of rules.
(x) Clarify the provisions of the statute’ Act: Power is delegated to the administrative authority to issue interpretation on various provisions of the enabling Act.
Authority based classification
Based on the position of the authority making the rules.
Sub-delegated legislation: When the rule-making authority delegates to itself or to some other subordinate authority a further power to issue rules, such exercise of rule-making power is known as sub-delegated legislation.
Rule-making authority cannot delegate power unless such power of delegation is contained in the enabling act. Such authorization may be either express or by necessary implication.
Maxim ‘delegatus non potest delegare’ indicates that sub-delegation of power is normally not allowable, though the legislature can always provide for it.
If the authority further delegates its law-making power to some other authority and retains a general control of a substantial nature over it, there is no delegation as to attract the doctrine of ‘delegatus non potest delegare.’
The maxim was originally invoked in the context of delegation of judicial powers and implied that in the entire process of adjudication, a judge must act personally except in so far as he is expressly absolved from his duty by a statute.
Sub-delegation in very wide language is improper and some safeguard must be provided before the delegate is allowed to sub-delegate his power.
Nature-based classification
On the basis of nature and extent of delegation
(i) Normal delegation
(a) Positive- where the limits of delegation are clearly defined in the enabling Act.
(b) Negative- where power delegated does not include power to do certain things, i.e., legislate on matters of policy.
(ii) Exceptional delegation
Instances of exceptional delegation may be:
power to legislate on matters of principle
power to amend Acts of Parliament
power conferring wide discretion that is almost impossible to know the limits
power to make rules without being challenged in a court of law
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