A COMPARATIVE STUDY OF ADMINISTRATIVE RULE MAKING

POWER AS PRACTICED IN UK AND USA

6.2 Administrative Law

Faculty-in-charge:

Dr.Diptimoni Boruah

(Associate Professor of Law)

Submitted by-

Moon Mishra

UID: SF0117029

B.A LL.B (3rd year, 6th Semester)

National Law University and Judicial Academy, Assam

Guwahati

31st May 2020

 TABLE OF CONTENTS

Table of Cases………………………………………………………...………………..……..ii

Table of Statutes…………...……………………………………………………………..…..iii

Table of Abbreviations………...………………………………….………………………….iii

1. Introduction……………………………………………..……………………………..1

1.1. Aims and Objectives…………………………...…………….

………………………..2

1.2. Scope and

Limitations…………………………………………………………………2

1.3. Literature

Review……………………………………………………………………...3

1.4. Research Questions………………………………………...…………….

……………3

1.5. Research Methodology…………………………………….

……………………..…4

2. Quasi Legislative Functions of The Legislature……………………………………

2.1 Meaning of Quasi Legislative Function of the Legislature…………………………….

2.2 Need of Quasi Legislative Action Of The Legislature…………………………………

2.3 Factors Responsible for The Rapid Growth Of Quasi Legislative Action In The Rule

Making……………………………………………………………………………………..

3. Executive Rule Making In The United States………………………………………..

3.1 Nature Of Rule Making In The United States Of America…………………………

3.3 Delegated Legislation In The United States…………………………………………..

3.3 Rule-Making Procedure In The United States Of America………………………….

i
4. Executive Rule Making In The United Kingdom………………………………………

4.1 Nature Of Rule Making In The United Kingdom………………………………………

4.2 Delegated Legislation In The United Kingdom………………………………

4.3 Restraints On Delegation Of Legislative Power In The United Kingdom………..

4.4 Parliamentary Control In The United Kingdom…………………………………

5. Comparision Between Rule Making Power In U.S.A And U.K…………………

6. Conclusion………………………………………………………………………

7. Bibliography……………………………………………………………………

ii
 LIST OF CASES

LIST OF FOREIGN CASES

1. Agricultural Training Bd v Aylesbury Mushrooms [1972] 1 WLR 190.

2. American Textile MfrsInst v Donovan 452 US 490 (198I)

3. Bates v. Lords Haiisman (1972) 3 All E.R. 1019.

4. Bourgoinsa v. Ministry of Agriculture, (1985) 3 WLR 1027

5. Bromley London Borough Council v Greater London Council [1982] 2 WLR 62

(HL)

6. Field v. Clark ,143 U.S. 649 (1892)

7. Litcher vs. US (1947) 334 US 742

8. Mistretta v. United States, 488 U.S. 361 (1989)

9. National Broadcasting co. v. U.S. (1943) 319 US 190

10. Panama Refining Co. v. Ryan (1934) 293 US 388.

11. RV. Ennviorment Sec. Exp. Spath Holme Ltd.,(2001) 1 AllER 195.

12. Schechter Poultry Corpn. V. U.S. (1935) 295 US 495; L Ed 1570

13. United States v Florida East Coast Ry 410 US 224 (1973)

14. Yokus vs. US , (1944) 321 US 414

LIST OF INDIAN CASES

1. JayantilalAmratlal v. F. N. Rana, A.I.R. 1964 S.C. 648 (India).

2. SundrajasKanyalalBhatija v. Collector, Thane, A.I.R. 1990 S.C. 261 (India).

3. Union of India v. Cynamide India Ltd. A.I.R. 1987 S.C. 180 (India).

iii
 LIST OF STATUTES

1920- U.K. Emergency Power Act

1946- Administrative Procedure Act

1946- National Insurance Act

1946- Statutory Instruments Act

1947- Town and Country Planning Act

1964- Industrial Training Act

1998- Human Rights Act

iv
 TABLE OF ABBREVIATIONS

AIR All India Reporter

Anr. Another

AP Andhra Pradesh

Bom Bombay

Cal. Calcutta

Corp Corporation

Cri Criminal

ed Edition

L.J. Law Journal

LR Law Report

Mad Madras

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

Supl/Supp Supplementary

UOI Union of India

v. versus

Vol Volume

v
Abstract

The conduit of law and its implementation receives a boost in the form of the delegated
legislation. In this regard, one can overview and find out a well-developed and neatly defined
set up of delegated legislation in many countries across the globe. On account of having
difference of the administrative methods and polities such as parliamentary democracy or
presidential etc. the forma of delegation may vary from each other, but the notion of the
administrative convenience and to enhance the efficacy of it remains the same everywhere.

Keywords: administrative, presidential, parliamentary, delegated.

1
 1. INTRODUCTION

The conduit of the law and its implementation receives a boost in the form of the delegated
legislation. In this regard, one can overview and find out a well-developed and neatly defined
set up of delegated legislation in many countries all across the globe. On account of having
difference of the administrative methods and polities such as parliamentary democracy or
presidential etc. the forma of delegation may vary from each other, but the notion of the
administrative convenience and to enhance the efficacy of it remains the same everywhere

This project basically deals with the comparative analysis of the delegated legislation with
regard to some of the nation’s such as- United Kingdom and United States of America. Its
pertinent to note here that, having different genesis of the legal system such common law or
civil law pattern, the nature of the delegation also varies in these countries. The difference of
the delegated legislation remains continue in almost all the intricacies and elements involved
within it, such as modes of delegation, the scope and permissible limits of the delegation, the
methods of control over delegation and actual means to control it etc.

1.1 AIMS AND OBJECTIVES

The aim of this project is to compare the administrative rule-making power in the United
States of America and the United Kingdom.

The following are the objectives of this project:

1. To study the concept of quasi-legislative action under Administrative Law,

2. To study the executive rulemaking power in the United States, with reference to the
legal system that is existent there,
3. To study the executive rulemaking power in the United Kingdom, with reference to
the legal system that is existent there; and
4. To compare the executive rulemaking power in the United States, and the United
Kingdom.

1.2 SCOPE AND LIMITATIONS

This project covers the concept of the delegated legislation, and its requirement in the present
times. This project also includes a conceptual understanding of the quasi-legislative action in

2
the present scenario. The executive law making power in the United States and the United
Kingdom are also covered in this project. In this project, the researcher has included the
understanding of the presidential and parliamentary legal systems, prevalent in the United
States, and the United Kingdom, respectively. This project also compares the two systems,
with emphasis on the executive law making powers in both the countries.

The limitation of this project is that it does not include the historical development of the
executive law making powers in the United States and the United Kingdom.

1.3 LITERATURE REVIEW

 I.P MASSEY, ADMINISTRATIVE LAW (9thed 2020).

Dr. I.P. Massey’s book contains a lucid exposition of administrative law in all its aspects and
dimensions and offers a highly perceptive and critical analysis. I have no doubt that this book
will be of immense use not only to law students but also to lawyers and administrators and
men in public life. The Ninth edition of this scholarly work has been thoroughly revised and
updated with the latest case laws and contemporary developments in various spheres of
administrative law from India and abroad.

 JAIN MP, JAIN SN. PRINCIPLES OF ADMINISTRATIVE LAW, (5th ed., 2007)

The book contains a detailed examination of the principles of Administrative Law and
elaborate discussion on each one of them It takes note of the recent major developments in
the field of Administrative Law. It covers exhaustively all major judicial pronouncements
which seek to strengthen procedural and substantive safeguards vis-à-vis the administration It
analyses in detail the impact of various important Constitutional principles on Administrative
law. It also provides an elaborate discussion on the consequential development of
Administrative Law in foreign countries through relevant foreign case law.

1.4 RESEARCH QUESTIONS

The following are the research questions of this project:

1. What is quasi-legislative action under Administrative Law?

2. What is the nature of the legal systems that exist in the United Kingdom and the
United States?

3
 3. What is the executive rulemaking power prevalent in the United Kingdom and the
United States?
4. What are the similarities and differences in the executive rulemaking power as
prevalent in the United States and the United Kingdom?

1.5 RESEARCH METHODOLOGY

In this project, the researcher has adopted analytical type of research and a doctrinal method
of data collection. Doctrinal research methodology is essentially a library-based study, which
means that the materials needed by a researcher may be available in libraries, archives and
other data-bases. The researcher has used computer laboratory and used various websites to
get important data related to this topic. 20th Edition of Bluebook citation is used as a mode of
citation for footnoting

Data has been collected from secondary sources like books, journals, web sources etc. No
primary source like survey data or field data was collected by the researcher

4
 2. QUASI LEGISLATIVE FUNCTIONS OF THE LEGISLATURE

Legislature is the law-making organ of any State. When any administrative authority
exercises the law-making power delegated to it by the legislature, it is known the rule-making
action of the administration or quasilegislative action. 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.1 it is subordinate in the sense that the powers of the
authority which makes it are limited by the statute which conferred the power and,
consequently it is valid only in so far as it keeps within those limits, whereas a law made by
legislature is not limited by any law made by any other body, except where there is a written
constitution imposing limitations upon the legislature as in Indian. The makers of subordinate
legislation, in other words, may be its immediate authority, but its ultimate authority is a
superior legislature which conferred the power to make the legislation.

2.1 MEANING

Quasi-legislative is the function of subordinate legislation or that of making rules, regulations

and other statutory instruments to fill in the details of legislative enactments in order to make
the execution of the laws possible.2

Quasi legislative action of the administration partakes the characteristics which a normal
legislative action possesses. Such characteristics may be generality, prospectivity and
behaviour which bases action on policy consideration and gives a right or a disability. These
characteristics are not without exception. In some cases, administrative rule-making action
may be particularized retroactive and based on evidence. In the words of Justice Chinnappa
Reddy, a legislative action has four characteristics: (i) Generality; (ii) prospectivity; (iii)
public interest; and (iv) right and obligations flow from it.3

It is, no doubt, true that any attempt to draw a distinct line between legislative and
administrative function is difficult in theory and impossible in practice. Though difficult, it is
necessary that the line must be drawn as different legal rights and consequences may ensue 4
as Schwartz5 said, “If a particular function is termed 'legislative’ or ‘rule-making’ rather than
judicial or ‘adjudication’, it may have substantial effects upon the parties concerned. If the
1
44 HALSBURY, ADMINISTRATIVE LAW(4th ed. 2017)
2
JayantilalAmratlal v. F. N. Rana, A.I.R. 1964 S.C. 648 (India).
3
Union of India v. Cynamide India Ltd.A.I.R. 1987 S.C. 180 (India).
4
Union of India v. Cynamide India Ltd., A.I.R. 1987 S.C. 180 (India).
5
Supra Note 1

5
function is treated as legislative in nature, there is no right to a notice and hearing unless a
statute expressly requires them. In the leading case of Bates v. Lords Haiisman6 it was
observed that “the rules of natural justice do not run in the sphere of legislation, primary or
delegated.” It is an accepted principle of the Administrative Law that, “there is no right to be
heard before the making of legislation, whether primary or delegated unless it is provided by
statute"7

2.2 NEED OF QUASI LEGISLATIVE ACTION OF THE LEGISLATURE

Most of the modern socio-economic legislations passed by the legislature lay down the
guiding principles and the legislative policy. The legislatures because of limitation imposed
upon by the time factor hardly go into matters of detail. Provision is, therefore, made for
delegated legislation to obtain flexibility, elasticity, expedition and opportunity for
experimentation. The practice of empowering the executive to make subordinate legislation
within a prescribed sphere has evolved out of practical necessity and pragmatic needs of a
modern welfare State.

In modern times, it is not always possible for the legislatures to make laws providing every
detail.  In view of newer areas emerging, law-making today has become not only time
consuming but also an increasingly complicated and technical affair. What a legislature can
possibly do and actually does is that it lays down the policy and purpose of the legislation and
leaves it to the executive, experts and technocrats to provide for working details within the
framework of the enactment by way of rules, regulations, bye-laws or other statutory
instruments. That is why, delegated legislation is increasingly assuming an important role in
the process of law-making, comprising an important component of legislation. Powers have
also been conferred under various provisions of the Constitution of India on the different
functionaries to frame rules, regulations or schemes dealing with various aspects.

All countries that adhere generally to the principle of separation of powers find themselves in
a dilemma. To an increasing extent, law in these countries is made not by the proper
legislature, that is the elected parliament, but ratherby the executive branch. The exigencies
of modem States have led legislators to transfer much of their lawmaking powers to
administrators. These developments have placed administrators in a very powerful position.
Thus, it has become one of the major tasks of constitutional and administrative law to channel

6
Bates v. Lords Haiisman(1972)3 All E.R. 1019.
7
SundrajasKanyalalBhatija v. Collector, Thane, A.I.R. 1990 S.C. 261 (India).

6
this power. All jurisdictions acknowledge the departure from the traditional doctrine of
separation of powers, but equally have to ensure that delegated legislation carries sufficient
democratic legitimation.8

2.3 FACTORS RESPONSIBLE FOR THE RAPID GROWTH OF QUASI

LEGISLATIVE ACTION IN THE RULE MAKING

The following are the factors responsible for the growth of the administrative rule making: -

1. Pressure on Parliament – The number of activities in states is expanding which

requires law and it is not possible for the Parliament to devote sufficient time to every
matter. Therefore, for this, the Parliament has made certain policies which allows the
executives to make laws accordingly.

2. Technicality – Sometimes there are certain subject matters which requires

technicality for which there is a requirement of the experts who are professional in
such fields and members of Parliament are not experts for such matters. Therefore,
here such powers are given to experts to deal with such technical problems like gas,
atomic, energy, drugs, etc.

3. Flexibility – It is not possible for the Parliament to look after each contingency while
passing an enactment and for this certain provisions are required to be added. But the
process of amendment is very slow as well as the cumbersome process. Thus, the
process of delegated legislation helps the executive authority to make laws according
to the situation. In the case of bank rate, policy regulation, etc., they help a lot in
forming the law.

4. Emergency – At the time of emergency, it is not possible for the legislative to
provide an urgent solution to meet the situation. In such case delegated legislation is
the only remedy available. Therefore, in the times of war or other national
emergencies, the executives are vested with more powers to deal with the situation.

5. The complexity of modern administration – With the increasing complexity in

modern administration and the functions of the state being expanded and rendered to
economic and social spheres too, there is a need to shift to new reforms and providing
more powers to different authorities on some specific and suitable occasions. In a

8
I.P MASSEY, ADMINISTRATIVE LAW (9thed 2020).

7
 country like Bangladesh, where control over private trade, business or property may
be needed to be imposed, and for implementation of such a policy so that immediate
actions can be taken, it is needed to provide the administration with enough power.9

And so, therefore for immediate and suitable actions to be taken there has been an immense
growth of delegated legislation in every country and being that important and useful it
becomes a non-separable part in the modern administrative era.

9
I.P MASSEY, ADMINISTRATIVE LAW (9thed 2020).

8
 3.EXECUTIVE RULE MAKING IN THE UNITED STATES

3.1 NATURE OF RULE MAKING IN THE UNITED STATES OF AMERICA

By virtue of Presidential democratic set up the United States of America bears a natural tilt
towards executive authorities as a backbone of the polity. However, being the supreme law of
the land the Constitution of the USA bears different equation. At the outset, it provides that,
"All legislative Powers herein granted shall be vested in a Congress of the United States." 10
As far as USA is concern, its constitution clearly states that, “the executive power shall be
vested in a President of the United States of America. 11” Moreover, the President of the USA
has been bound to ensure that he shall take care that laws be faithfully executed. 12 Thus, a
pellucid approach can be well observed under the Constitution of the USA pertaining to the
form of executive functioning. Thus, it will be a futile hardship to trace the roots of the
delegated legislation under the Constitution of USA.

In 1690, John Locke wrote that “The legislative cannot transfer the power of making laws to
any other hands: for it being but a delegated power from the people, they who have it cannot
pass it over to others.13” A century later, in 1789, the federal Constitution provided that “all
legislative Powers herein granted shall be vested in a Congress of the United States14.”

Moreover, a motion by James Madison at the Constitutional Convention to give the president
the power "to execute such other powers as may from time to time be delegated by the
national Legislature" was refuted on the ground of being superfluous in view of
implementation of the national laws. However, the inherent uncertainty to take a form stance
remained incessant in some of the landmark precedents in between, especially when A little
more than a hundred years later, in 1892, the Supreme Court declared in Field v. Clark,15
“That Congress cannot delegate legislative power to the President is a principle universally
recognized as vital to the integrity and maintenance.” In 1989, nearly a century after it the
Supreme Court of USA in Mistretta v. United States16 had upheld the urge and gross
necessity of the grant of legislative power to the executive agencies to implement the same in
most appropriate and efficient way based on the guidelines for federal criminal offences.
10
Article 1-Section 1 of the US Constitution.
11
Article 2, Section 1 of the US Constitution.
12
Article 2, Section 3 of the US Constitution
13
John Locke, Second Treatise of Civil Government (1690), thttps://www.marxists.org/
reference/subject/politics/locke/ch11.htm
14
Article 1, Section 1 of the US Constitution
15
Field v. Clark ,143 U.S. 649 (1892)
16
Mistretta v. United States, 488 U.S. 361 (1989)

9
This precedent paved way towards more pragmatic and liberal judicial interpretations to
welcome the radical changes in the field of administrative law such as delegated legislations.
Similarly, it also renounced the traditional stand to strictly stick on to the doctrine of
separation of power and has brought flexibility in it.

3.2 DELEGATED LEGISLATION IN THE UNITED STATES

Being placed under the first Article of the USA Constitution, The Clause has limited breadth.
The sweeping clause permits Congress to enact implementing (or execute) laws only if those
17
laws are "necessary and proper" for effectuating federal powers " This Sweeping Clause
runs as- The Congress shall have Power... To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department or Officer thereof.
Although the word “proper” in the sweeping clause was largely ignored for more than two
centuries, a careful study of the term in its constitutional context shows that congressional
statutes under the sweeping clause must conform to background norms of federalism,
separation of powers, and individual rights. The understanding that congressional statutes
under the sweeping clause must conform to certain background norms has broad
ramifications.

Two phenomena operate in the USA namely—Separation of Power and “Delegatus non
potestdelegare”. Since Congress was itself a delegate, how can it delegate its power? The
framers of the American Constitution were imbued with the political theories propagated by
John Locke and Montesquieu. The firm answer pertaining to the question, whether USA
bears delegation of legislative power under its polity is yet to be found. In USA there are two
theories exists about the subsistence of the delegated legislation.

Prof. K.C. Davis has been regarded as an ardent supporter of this theory. According to this
theory, the US Constitution or any other legal framework does not provide any firm rule
which provides for the non-delegation.18Prof. Davis ascertained that, the non-delegation
doctrine evolved by the Court is ‘verbiage.’ The law also allows the delegation even though
the policy involves major question of law. He also warned that, any other view apart from
this, would make the administration of the modern Governments would be impossible
without the delegation of powers. The harshly stricter non-delegation language and the pro-
17
Gary Lawson, Delegation and the Constitution, Regulation, Vol. 22, No. 2, Available at- http://object.cato.
org/sites/cato.org/files/serials/files/regulation/1999/7/deleg ation.pdf
18
Id

10
delegation favoured precedents have made the status of delegated legislation quite trembling
under USA. However, the stand taken by the Prof. Davis in the appreciation of the delegated
legislation requires much more facets ahead. The degree of such delegation has to be
regulated and quantified. Therefore, the idea of limited validity has been emerged out in
USA. Thus, a transition phase has been started pertaining the concretization of the delegated
legislation in in US legal system.

3.3 RULE-MAKING PROCEDURE IN THE UNITED STATES OF AMERICA

The enactment of the Administrative Procedure Act (APA) in 1946 was the landmark event
in the history of American administrative law. This statute struck a compromise between
advocates and opponents of procedural formality, one which has proved resilient and
enduring. The APA grew out of a study in 1941 by the Attorney-General's Committee on
Administrative Procedure19 (in much the same way that the Tribunals and Inquiries Act 1958
was inspired by the report of the Franks Committee). Building upon existing practices, the
Attorney-General's Committee recommended an informal but mandatory rulemaking system
which ultimately became Section 4 of the APA20. More specifically, the APA requires an
agency to give general notice of the terms or substance of a proposed rule 21. Interested
persons are invited to submit written data, views, or arguments, with or without an oral
presentation. The rule must incorporate a 'concise general statement' of its basis and purpose
and be published not less than thirty days prior to its effective date 22. No procedures are
required to adopt non-delegated subordinate legislation or procedural rules; moreover, the
undemanding steps required to adopt legislative rules can be omitted if they would be
impracticable, unnecessary, or contrary to the public interest. However, non-delegated
subordinate legislation of general applicability must be published in the Federal Register after
it is adopted.

Though, in theory, strict adherence thereto was not practicable. Governmental functions had
increased and it was impossible for the Congress to enact all the statutes with all particulars.
The Supreme Court could not shut its eyes to this reality and tried to create 'a balance
between the two conflicting forces: (i) doctrine of separation of powers barring delegation
and (ii) inevitability of delegation due to the exigencies of the modern Government.'

19
Administrative Procedure in Government Agencies. S Doc 8, 77th Cong 1st Sess (1941)
20
APA Legislative History, S Doc 248, 79th Cong 2d Sess (1946) 17-21, 304, 358-9.
21
APA s 553(4).
22
APA 8 553(c), (d).

11
In Panama Refining Co. v. Ryan23, popularly known as the Hot Oil case, under Section 9(c)
of the National Industrial Recovery Act (NIRA), 1933, the President was authorized by the
Congress to prohibit transportation of oil in inter-State commerce in excess of the quota fixed
by the State concerned. The policy of the Act was 'to encourage national industrial recovery'
and 'to foster fair competition'. The Supreme Court by majority held that the delegation was
invalid. According to the Court the Congress had not declared any legislative policy or
standards.

In Schechter Poultry Corpn. V. U.S.24 (Sick Chicken case), the Supreme Court unanimously
struck down Section 3 of the National Industrial Recovery Act (NIRA), 1933 which
authorized the President to approve codes of fair competition and violation thereof was made
publishable. The Court held that the discretion of the President was 'virtually unfettered'.
Justice Cardozo stated; "This was delegation running riot." After the above two cases,
however, the Supreme Court took a liberal view and in many cases, upheld delegation of
legislative power.

Thus, in National Broadcasting co. v. U.S.25 vast powers were conferred upon the Federal
Communication Committee (FCC) to license broadcasting station under the Communication
Act 1934. The criterion was public interest convenience or necessity. Though it was vague
and ambiguous the Supreme Court held it to be valid statement.

Similarly, in Yokus vs. US26 under the Emergency Price Control Act, 1942 the Price
Administrator was given the power to fix such maximum price which “in his judgment will
be generally fair and equitable and will effectuate the purposes of the Act”. The
Administrator was required so far as practicable, to give due consideration to the prices
prevailing between October 1 and October 15, 1941, but was allowed to consider a later date
if if necessary data were not available, and yet the Supreme Court sustained the delegation,
holding that the standards were adequate, Justice Roberts (minority view) rightly observed
that by the majority judgment, Schechter was overruled.

Again in Litcher vs. US27 the Reorganization Act, 1942emppowered Administrative Officers
to determine whether the prices were excessive and to recover profit which they determined

23
Panama Refining Co. v. Ryan (1934) 293 US 388.
24
Schechter Poultry Corpn. V. U.S. (1935) 295 US 495; L Ed 1570
25
National Broadcasting co. v. U.S. (1943) 319 US 190
26
Yokus vs. US ,(1944) 321 US 414
27
Litcher vs. US (1947) 334 US 742

12
to be excessive. The Supreme Court held that, the delegation valid observing that the
statutory term “excessive profits” was a sufficient expression of legislation policy and
standards to render it Constitutional. In U.S.A., thecontrol of the Congress over delegated
legislation is highly limited because neither is the technique of “laying” extensively used nor
is there any Congressional Committee to scrutinise it.

4. EXECUTIVE RULE MAKING IN THE UNITED KINGDOM

13
4.1 NATURE OF RULE MAKING IN THE UNITED KINGDOM

Being the essence of parliamentary democracy U.K. bears its own kind of set up for the
delegated legislation. Having been based on the principle of ‘parliamentary sovereignty’,
U.K. legal system bears paramount authority to the parliament. Thus every minute intricacy
in this regard can be seen to be linked with the Parliament. In the earliest years of British
Parliament, broad power to legislate by proclamation remained with the crown. In the 1539
Royal Power to issue proclamation for good order and governance was recognised by Henry
VIII’s Statute of Proclamations and such proclamations were enforced as if made by Act of
parliament. However, the aforesaid statute was replaced in 1547. Thereafter the Acts of
parliament delegated power to the crown to make laws 28. The legal omnipotence of the King
in Parliament means that there is no constitutional impediment to the delegation of legislative
and judicial powers to the Executive. In the sixteenth century- a period of rapid social and
economic change. Parliament was already conferring sweeping legislative powers upon the
Crown.

With the vast extension of the functions of government in the nineteenth century, Parliament
Was compelled to delegate farreaching powers to a variety of administrative authorities. This
century has seen the legislative output of Parliament easily outstripped in bulk and
complexity by subordinate legislation. The present article will deal with the delegation of
legislative powers, and it may be useful at the outset to state what the principal forms of
delegated legislation are today29.

It means In fact, parliaments have been delegating powers to the executive for some time in
England, possibly for as long as 650 years30. In England, Parliament is sovereign. In
principle, it is only Parliament which can enact laws. But as observed by C.K. Allen:
"Nothing is more striking in the legal and social history of the nineteenth century in England
than the development of subordinate legislation”

In twentieth century, Parliament was obliged to delegate extensive law-making power in

favour of Government. A hue and cry was raised against the growth of delegated legislation.
The matter was, therefore, referred to the Committee on Ministers' Power (Donoughmore
Committee) in 1929. It observed and rightly stated; "The system of delegated legislation is

28
JAIN MP, JAIN SN. PRINCIPLES OF ADMINISTRATIVE LAW, (5 ed. 2007)
29
Jstore SA, DeSmith.The Western Political Quarterly,UNIVERSITY OF UTAH (2014)
30
Dennis Pearce and Stephen Argument, Delegated Legislation in Australia, 4 LEXISNEXISBUTTERWORTHS, 5
(2012)

14
both legitimate by permissible and constitutionally desirable for certain purposes, within
certain limits and under certain safeguards31." The making of Policy occurs at many points in
an administrative system. At the highest level it is made by cabinet and becomes legislation;
at lower level it is made by ministers and departments, by statutory agencies and regulatory
bodies32 It’s also pertinent to note that, being a colony of the British Empire, India has also
seen the aftermaths of the recommendations of the Donoughmore Committee. The laws
enacted for India by the British parliament did imbibe the delegated legislation as per the
lines drawn by this committee.

4.2DELEGATED LEGISLATION IN THE UNITED KINGDOM

U.K. Emergency Power Act 1920 makes permanent provisions enabling the executive to
legislate subject to parliamentary safeguards in the event of certain emergencies 33. Legislative
powers may be delegated to the Executive in one of two main forms: His Majesty may be
empowered to make Orders in Council for specified purposes; or power to make regulations,
rules, schemes, or orders for those purposes may be given to a named Minister. Since the
Statutory Instruments Act, 1946, came into operation all such Orders in Council and a large
proportion of departmental regulations have been classified as "statutory instruments."

Orders in Council are made at a formal meeting of the Privy Council. They do not differ in
sub- stance from departmental regulations, but it is sometimes appropriate to lend the dignity
of an ancient institution to the making of an important legislative instrument. Also, it is usual
for two particular types of delegated legislation to be made in Council: first, the fixing of the
"appointed day" on which a statute is to come into operation, and, secondly, legislation for
the majority of colonies and for other dependencies. Other types of authorities exercising
delegated legislative powers include independent statutory authorities, e.g., the Milk
Marketing Board, which makes schemes having the force of law; local authorities, which are
empowered to make by-laws; and professional bodies, e.g., the Council of the Law Society,
which makes regulations for the compulsory attendance at law schools of clerks articled to
solicitors.

The Government now has the power to make regulations generally for ensuring that the
whole resources of the community are available for use, and are used, in a manner best

31
Wade &Forsth, Administrative Law (2005) at pp.857-58. For distinction between legislative and
administrative functions, see supra, Lecture III.
32
GOLLIGON DJ. ADMINISTRATIVE LAW, (4th ed. 1996)
33
JAIN MP, JAIN SN. PRINCIPLES OF ADMINISTRATIVE LAW, (5th ed., 2007)

15
calculated to serve the interests of the community Formidable statutes like the National
Insurance Act, 1946, and the Town and Country Planning Act, 1947, have been described as
"Skeleton Acts"; the responsible Ministers have been left to reverse the processes of nature
by making regulations to clothe the bones with flesh and blood.

The number of statutory rules and orders registered in 1937 was 1231; in 1947 it was 2916;
and these figures represent only a small part of the total volume of delegated legislation.
Protests are often made that the citizen now has to obey so many technical regulations that
respect for the law has decreased. That there is some substance in these complaints is
indisputable. But it is easier to diagnose an ill than to prescribe a cure. Unrepentant
individualists like Professor F. A. Hayek and Dr C. K. Allen have perceived that there is no
hope of substantially reducing the present volume of delegated legislation while collectivist
doctrines are sub- scribed to by all political parties. And under modern economic and
political conditions a return to anything resembling the laissez faire philosophy is out of the
question.

4.3RESTRAINTS ON DELEGATION OF LEGISLATIVE POWER IN THE UNITED

KINGDOM

The validity of statutory instrument may be challenged on two main grounds i.e. the content
and substance of the instrument is ultra vires the parent act and that the correct procedure has
to been followed in making the instrument34. In 1998 the parliament enacted Human Rights
Act 1998. Sec 3(1) of the Human Rights Act 1998 casts a duty to interpret the legislation
consistently with the European convention rights where it is possible to do so. Thus, the
requirement of a valid subordinate law is that it should be in conformity with European
Convention Law. In Bourgoinsa v. Ministry of Agriculture35 a ministerial order was held to be
unlawful on account of conflict with European Convention treaty.

In Britain executive has no inherent legislative powerStatutory authority is indispensible.

The delegated legislation does not have any immunity from challenge in courts which Acts of
parliament enjoy as there is a fundamental difference between a sovereign and subordinate
law making power. House of Lords in Hotel and Catering Industry Training Board v.
Automobile Ply Ltd.36 Declared invalid an order of minister of labour which would have
imposed Industrial Training Act, 1964.
34
RV. Ennviorment Sec. Exp. Spath Holme Ltd.,(2001) 1 AllER 195.
35
Bourgoinsa v. Ministry of Agriculture, (1985) 3 WLR 1027
36
House of Lords in Hotel and Catering Industry Training Board v. Automobile Ply Ltd. (1969) 2 All ER 582.

16
4.4PARLIAMENTARY CONTROL IN THE UNITED KINGDOM

The initial control Parliament exercises over delegated legislation is through the limits it sets
in the parent/enabling Act. Only the people or body specified in the parent Act have power to
make law, and the extent of that power is also specified. In addition, the parent Act will set
out how the delegated legislation must be made and may set out certain procedures, such as
consultation, to be followed. Parliamentary supremacy is not compromised because
Parliament ultimately remains in control of what law is made and how it is made. Although
law-making is removed from the elected House of Commons through the parent Act, it
specifies the limits of that power. Parliament may repeal or amend the piece of delegated
legislation. This control also upholds parliamentary supremacy, as Parliament can make or
unmake any law. However, the effectiveness of this control is limited because, due to the
volume of delegated legislation made each year, Parliament will not be able to check it all.
The Joint Select Committee on Statutory Instruments, more commonly known as the Scrutiny
Committee, is made up of MPs and peers. Its role is to review statutory instruments and to
refer provisions requiring further consideration to both Houses of Parliament. This is
arguably one of the more effective controls, as many statutory instruments are subject to
some scrutiny.

5. COMPARISION BETWEEN RULE MAKING POWER IN USA AND UK

1. Laying before the Parliament:

It may be thought that the benign British attitude toward delegated legislation can be
explained by the long-established procedure for laying regulations before Parliament together
with provision for annulment (or in some cases required approval) of the rules of either

17
House.37 As critics have pointed out,38 however, parliamentary control over rulemaking is
quite ineffective as a check against ill- considered rules. Membership on the Merits
Committee is understandably unpopular in light of its lack of power and the Joint Scrutiny
Committee seems little more attractive. In addition, the forty-day annulment period is often
too short and little time for debate is made available. As would be expected, members are
generally uninterested and poorly informed about the substance of rules, while administrators
are ill-disposed toward making changes in already completed instruments. While the laying
process is traditional and may have improved the drafting of rules, 39 it seems of little practical
significance as presently constituted and could not explain the general satisfaction in Britain
with the substance of rules and the procedure by which they are made.

2. The Consultation Process

A more plausible explanation for the British attitude that rulemaking is a non- problem is that
officials routinely conduct informal consultation with interested groups before regulations are
adopted.40 A department typically maintains a mailing list of groups known to be interested in
its operations (such as local governments and scientific, industrial or public interest groups)
and circulates draft regulations to them. Representatives of these bodies correspond with and,
less frequently, actually meet informally with the officials responsible for drafting the rule.
So far as I could determine, in talking with environmental groups and others interested in
pending regulations, the system works satisfactorily. Only a few tentative voices have
suggested the contrary.41

Yet an observer accustomed to a more structured system of notice and comment finds the
British approach inadequate. Informal consultation through a mailing list cannot reach
individuals nor fringe groups and often misses even established groups which are not known
to be interested in the problem. It reaches only groups or governmental bodies already in a
department's files and which may already have undue influence over that body. Moreover,
informal consultation furnishes no obvious method by which interested persons might
become familiar with and respond to submissions by others who have been informally
consulted.

37
See 38 Wade;J. Kersell, Parliamentary Supervision of Delegated Legislation (1960)
38
Beatson, Legislative Control of Administrative Rulemaking: Lessons from the British Experience? 12 CORNELL
?' 12 CORNELL INT'L L 199 (1979).
39
Supra Note 27
40
Agricultural Training Bd v Aylesbury Mushrooms [1972] 1 WLR 190.
41
85 See Beatson, supra note 38

18
In America, by contrast, a proposed rule is published in the Federal Register which is
subscribed to by many people interested in particular sorts of regulation, many of them
previously unknown to a rulemaking agency. The notice invites comment and often triggers
an outpouring of responses. Commentators can read the comments made by others in the
rulemaking file and respond to them. Although an agency can, of course, solicit, then ignore,
contributions which it regards as worthless or trivial, this in any mass participation process,
even a British public inquiry. public inquiry. The risk is greatly diminished because the courts
now require that an agency respond to the material objections made by commentators in the
statement of basis and purpose which accompanies a final rule. In addition, agencies
frequently conduct oral hearings at which any interested person is invited to present
arguments to the decision-makers, a useful device for focusing attention on overlooked
problems or on the intensity of the speaker's feelings.

The American system thus enriches the quantity and quality of inputs available to decision-
makers and is universally considered to enhance democratic values of public participation in
the making of crucial decisions as well as to improve the acceptability of those decisions to
persons affected by them.42

3. The Written Constitution and Judicial Activism

The American written constitution explains many differences between the legal system of the
two nations, but it cannot furnish a simple explanation for their differing attitudes toward
delegated legislation. The many American court decisions concerning rulemaking are not
based upon constitutional law but upon statutory interpretation, because constitutional
procedural due process requirements (similar in broad outline to British natural justice) apply
only to adjudication, not to rulemaking.43

Nevertheless, it seems clear that the intense involvement of the federal judiciary with
rulemaking has catalysed American attitudes toward the subject. If the courts had been
indifferent to claims that rulemaking procedures were inadequate and deferential to agency
contentions that rules were reasonable, much of the legal and political controversy
surrounding the subject would probably never have arisen or at least would have been
confined to legislative and executive initiatives.

42
See United States v Florida East Coast Ry 410 US 224 (1973)
43
Id

19
The willingness of American courts to involve themselves in highly political and visible
confrontations with the executive branch on rulemaking questions is traceable to
constitutional roots. The long tradition of judicial review of the constitutionality of statutes
has fostered a peculiar attitude of reliance on courts to solve political controversies where a
legislative response is perceived to be inadequate. Every day, American courts issue
constitutional rulings on political issues, such as the right to abortion, reforming electoral
districts, choice of school library books, or prison reform, which would be reserved to
legislative bodies in Britain. Consequently, American litigants displeased with particular
regulations look naturally to courts for non-constitutional relief. They did so at a time when
popular distrust of government and academic criticism of the regulatory process made
judicial interventionism politically feasible. Consequently, the courts responded by rebuilding
rulemaking procedure along quasi-adversary lines and conducting intensive substantive
scrutiny of rules.

Britain seems much less oriented toward using litigation to settle disputes, particularly those
in which official discretion is questioned or in which political overtones are present. Instead,
it seems that such disputes are usually settled quietly through compromise rather than
courtroom confrontations or resolved through conventional political processes. While British
judges undoubtedly feel less restrained in second-guessing discretionary decisions, especially
those made by local government officials, than in years past, 44 and while the wave of
American judicial interventionism has certainly receded from its crest, 45 the difference in
attitude and custom remains enormous.

4. Importance of Delegated Legislation

Delegated legislation is relatively uncontroversial in Britain because government seeks to

accomplish relatively little through this technique. Britain has fewer regulations and most of
them are less important than in America. To use a gross method of comparison, the number
of newly-adopted British statutory instruments in 1977, 1978, and 1979 total I,918, 1,621,
and 1,770, respectively, a great many of which relate to matters dealt with at state or local
levels in America. In the USA, it is estimated that 7,000 legislative rules are promulgated
annually at the federal level, of which 2,000 have a 'significant impact' on regulated parties or
on competition and more than one hundred have major economic effects. 46 While some

44
; Bromley London Borough Council v Greater London Council [1982] 2 WLR 62 (HL)
45
American Textile MfrsInst v Donovan 452 US 490 (198I)
46
Neustadt, 'The Administration's Regulatory Reform Program: An Overview' 32 Ad L Rev 129 (1980).

20
statutory instruments are important by any standard, such as those concerning change of use
in town and country planning, industrial safety regulations, building construction rules, lead
content in petrol, or control of advertising, the vast majority of the annual harvest of
regulations seem of very little general significance or downright trivial. The real question,
therefore, is why Britain relies so little on delegated legislation. Both nations grapple with the
same problems of controlling technology, ensuring environmental and industrial safety,
regulating land use, providing telecommunication and public utility services, administering a
welfare state, operating complex schemes of taxation, and so on. Americans tend to seek
solutions through regulation in the broad sense of government control of private sector
economic behaviour; this generally entails regulations in the narrow sense of subordinate
legislation.

Regulatory statutes are frequently the subject of a bitter Congressional struggle at the time of
their enactment. Very frequently, the bill originally proposed by the President bears little
similarity to the final product. The legislation is shaped by compromise between parties,
regions, and special interests. The byplay between the two Houses of Congress and the
manipulations of committee chairmen, jealous of their prerogatives, often play an important
role in moulding legislation.

The result of this process is that many important, even fundamental points are never resolved
in the legislation itself, because no acceptable compromise could be found. In order to pass
the bill, the gap is papered over by delegating the responsibility for settling these matters to
the agency which is responsible for enforcing the legislation. The result, of course, is a new
political process at the agency level47 and ultimately reams of important regulations to settle
vital details left vague by the statute. In Britain, by contrast, the government has no need to
leave important details to the regulatory process, for it can have its way at the time the bill is
enacted in Parliament (assuming, of course, that it has an absolute majority).

6. CONCLUSION

Delegated legislation also referred to as secondary legislation, is legislation made by a person

or body other than Parliament. Parliament, through an Act of Parliament, can permit another
person or body to make legislation. An Act of Parliament creates the framework of a

47
See L. Jaffe, 'The Illusion of the Ideal Administration' 86 HARV L REV 1183 (1973).

21
particular law and tends only to contain an outline of the purpose of the Act. By Parliament
giving authority for legislation to be delegated it enables other persons or bodies to provide
more detail to an Act of Parliament. Parliament thereby, through primary legislation (i.e. an
Act of Parliament), permit others to make law and rules through delegated legislation. The
legislation created by delegated legislation must be made in accordance with the purposes
laid down in the Act. The function of delegated legislation is it allows the Government to
amend a law without having to wait for a new Act of Parliament to be passed. Further,
delegated legislation can be used to make technical changes to the law, such as altering
sanctions under a given statute. Also, by way of an example, a Local Authority have power
given to them under certain statutes to allow them to make delegated legislation and to make
law which suits their area. Delegated legislation provides a very important role in the making
of law as there is more delegated legislation enacted each year than there are Acts of
Parliament. In addition, delegated legislation has the same legal standing as the Act of
Parliament from which it was created.

In spite of the dilution of the theory of non-delegation in the U.S.A., there is a real doctrinal
difference between Britain and the U.S.A. on the question of delegation. Though, in both
countries, delegation of legislative power has come to be established as a technique of
legislative and administrative process, and broad delegations have come to be permitted, yet,
while in the U.S.A., in theory, the last word rests with the courts on the question as to how
much delegation would be permitted in a given situation, in Britain it rests with Parliament as
there is no constitutional limitation to restrain Parliament from assigning power where it
likes. Because of the doctrine of excessive delegation in the U.S.A., the Congress does seek
to lay down some standards in the legislation delegating legislative power.

22
 BIBLIOGRAPHY

Books

1. 44 HALSBURY, ADMINISTRATIVE LAW(4th ed. 2017)

2. GOLLIGONDJ. ADMINISTRATIVE LAW, (4th ed. 1996)
3. I.P MASSEY, ADMINISTRATIVE LAW(9thed 2020).
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Journals

1. Jstore SA, DeSmith.The Western Political Quarterly,UNIVERSITY OF UTAH (2014)

2. Dennis Pearce and Stephen Argument, Delegated Legislation in Australia, 4
LEXISNEXISBUTTERWORTHS, 5 (2012)
3. Wade &Forsth, Administrative Law (2005) at pp.857-58. For distinction between
legislative and administrative functions, see supra, Lecture III.
4. RV. Ennviorment Sec. Exp. Spath Holme Ltd.,(2001) 1 AllER 195.
5. See 38 Wade ;J. Kersell, Parliamentary Supervision of Delegated Legislation (1960)
6. Beatson, Legislative Control of Administrative Rulemaking: Lessons from the British
Experience? 12 CORNELL ?' 12 CORNELL INT'L L 199 (1979).
7. Neustadt, 'The Administration's Regulatory Reform Program: An Overview' 32 Ad L
Rev 129 (1980).
8. See L. Jaffe, 'The Illusion of the Ideal Administration' 86 HARV L REV 1183 (1973).
9. Administrative Procedure in Government Agencies. S Doc 8, 77th Cong 1st Sess
(1941)
10. APA Legislative History, S Doc 248, 79th Cong 2d Sess (1946) 17-21, 304, 358-9.

Internet Sources

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 1. Gary Lawson, Delegation and the Constitution, Regulation, Vol. 22, No. 2, Available
at- http://object.cato. org/sites/cato.org/files/serials/files/regulation/1999/7/deleg
ation.pdf
2. John Locke, Second Treatise of Civil Government (1690), thttps://www.marxists.org/
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Legal Databases

1. Jstor
2. Manupatra Online Resources
3. SCC OnLine

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