Delegata potestas non potest delegari is a principle in constitutional and administrative law that means in Latin that “no delegated powers can be further delegated.
Delegation was described by Black’s Law Dictionary as an act of conferring or empowering a person to act on behalf of that person who gave him that power or to act as his agent or representative. Delegated legislation is law that is enacted in the United Kingdom not by an Act of Parliament but by a minister of government, a delegated individual or an agency.
Historical Background Of The Growth Of Administrative Law With Special Reference To Delegated Legislation In United Kingdom.
According to Dicey “In England, we know nothing of administrative law and we wish to know nothing about it”.
While Dicey had a lot of disrespect, Maitland and others believed that administrative discretion and administrative justice had already reached England. Although, later on he changed his view and admitted that parliament conferred quasi judicial functions on the administrative bodies so from this it was evident that delegated legislation was operating there.
Dicey further explain the droit administratiff in France with the rule of law in England. He wrote a book ” Introduction to the study of the law of constitution” in which he compared the rule of law with the droit adminstratiff of France and this made administrative law unpopular in England. Robson’s book on administrative law made the study of delegated legislation interesting in England.
In relation to these changes, Lord Hewert’s book ‘ New Despotism’ revealed the risks of delegated legislation and compelled the British Government to create the Donoghmore Committee, which recommended, inter alia, the creation of a select Committee on Legal Instruments, which released its report in 1932.
Allens book ‘Law & Order’ (1945) was a critical assessment of executive power exercises. In addition, the Statutory Instruments Act (1946) and the Crown Proceedings Act 1947 provided better protection for the individual against the executive’s arbitrariness.
A further dimension is the misuse of executive power. The affair “Crichel Down” prompted the government to constitute the Franks Committee in 1955 and was passed in 1958 on the basis of “The Tribunals and Inquiries Act”. This deals with the procedures each administrative body or department will follow.
Constitutionality Of Delegated Legislation in United Kingdom
The Doctrine of Parliamentary Sovereignty is the heart of UK Constitution. The Parliament is sovereign in England and there is no restriction on the Parliament by then Constitution. In England, Parliament also has road powers to delegate its legislative powers to the Executive or other subordinate bodies.
The Committee on Ministers’ Powers also refers to the fact that the Donoughmore Committee issued a report in which Sir Cecil Carr, a prominent lawyer from England, quoted around three parts of the law. The report was published in 1932. It dealt, inter alia, with delegated legislation.
According to the Report, delegation is necessary because:
1. The legislature (Parliament) has. much pressure of work on its time.
2. The legislators lack the technical knowledge required by modern legislation.
3. Complexities & Contingencies in the law are to be specially dealt with.
4. Amendment of legislation is to be avoided.
It has also been noted that the reality is that Parliament must provide guidance and also scrutinize the work of the delegate to whom the power to legislate is delegated otherwise there is a danger that “then servant will be passed over to then master.”
Henry VIII clause
“Delegata potestas non potest delegari” The general rule is that the legislature should execute its primary legislative duties by itself and should not delegate them to other bodies.
However, rules are made in some enactments to delgate. Those powers into the executive. The delegation here is large & unrestricted. For instance. The National Insurance Act, 1911 addresses the insurance commissioners’ powers. It also specifies that, in case of any trouble in enforcing the provisions, they can do anything they thought necessary and expedient for.
This blanket power is called Clause Henry VIII. The executive is the delegate and there is an implied abdication of legislative duties in favor of the executive if power is given to change the pro-visions themselves.
Doctrine Of Ultra Vires
Ultra Vires means “beyond powers”. If the subordinate legislative authority goes beyond the powder imposed by the enabling statute, Ultra Vires & void is such an exercise of power.
Doctine of Ultra vires is one of the reasons why the Court is scrutinizing delegated legislation. This is where the process for creating legislation set out in the enabling act was not followed.
Case Laws On Delegated Legislation in United Kingdom
Commissioners of Custom and Excise V Cure and Deely Ltd (1962)
In this case, Where the commissioners’ power to make delegated legislation was challenged under the 1940 Finance Act. Under this Act, the commissioners assessed the amount of tax due in the event that a tax return was submitted late, but the High Court invalidated this and claimed that the commissioners had granted themselves power far beyond what Parliament had allowed them to collect only the amount of tax due. This is another case which clearly shows that many authorities would misuse the powers ultra vires if delegated legislation is not effectively controlled. Regulation by the courts has proven highly effective in this case.
The doctrine of parliamentary sovereignty was upheld by Lord Reid in Madzimbamuto v. Lardner – Burke  1 AC 645 “It is often said that doing such things would be unconstitutional for the Parliament of the United Kingdom, meaning that the moral, political and other arguments against doing them are so strong that most people would consider it extremely unacceptable if the Parliament did these things. But that does not mean it is beyond Parliament’s power to do something like this. Although Parliament intended to do any of these, the courts would not invalidate Parliament’s Act.
By this we can conclude that delegated legislation in United Kingdom is law that is enacted in the United Kingdom not by an Act of Parliament but by a minister of government, a delegated person or an entity. Though a large volume of delegated legislation is published without near parliamentary scrutiny, regulatory instruments are in place to prevent its misuse. The Doctrine of parliamentary sovereignty is followed in united kingdom and the doctrine of separation of power is strictly followed.
- Delegated Legislation in India
- Delegated Legislation in United Kingdom
- Delegated legislation in USA
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Author Details: Deepali Kir (Asian Law College)
The views of the author are personal only. (if any)