A study on the types of delegated legislation
A Study on the Types of Delegated Legislation
1. Introduction: What is Delegated Legislation?
Delegated legislation (also called subordinate or secondary legislation) refers to rules, regulations, orders, or by-laws made by an authority or person to whom the legislature has delegated its law-making power.
Delegated legislation enables detailed, technical, or administrative rules to be made without requiring the full legislative process.
It is essential for efficient administration and flexible law-making.
2. Types of Delegated Legislation
Delegated legislation can be classified into several types based on the authority that makes it or the form it takes:
A. Statutory Rules and Orders
Made by government ministers or departments under powers granted by an Act of Parliament.
Often detailed rules for implementing legislation.
Example: Rules relating to income tax administration under the Income Tax Act.
B. By-laws
Made by local authorities, corporations, or other bodies for regulating their own affairs or local matters.
Usually subject to confirmation by a higher authority.
Examples: Traffic regulations by municipal corporations, university regulations.
C. Regulations
Usually framed by ministries or administrative bodies.
Have the force of law and govern specific matters.
Example: Environmental regulations under environmental laws.
D. Orders in Council
Made by the executive (such as the Crown or President) under statutory authority.
Often used in emergencies or for matters of national importance.
Example: Emergency regulations or appointment of public officials.
E. Rules
Usually procedural rules framed by courts or tribunals under statutory authority.
Regulate procedure rather than substantive rights.
Example: Rules of Civil Procedure.
F. Schemes
Detailed plans or arrangements authorized by legislation.
Example: Social security schemes framed under social welfare laws.
3. Case Law Illustrating Delegated Legislation
Case 1: Cecil v. The Ministry of Health (1957)
Facts: A statutory instrument was challenged for being ultra vires (beyond powers).
Judgment: The court held that delegated legislation must conform strictly to the parent Act.
Significance: Established the principle that delegated legislation must stay within the scope of enabling Act.
Case 2: Halsbury’s Laws of England (Halsbury’s Case)
While not a case per se, Halsbury emphasizes that delegated legislation must not conflict with primary legislation.
It must be within the limits of the parent statute.
Case 3: Attorney General v. Fulham Corporation (1921)
Facts: A local authority made by-laws to operate a laundry, which was not authorized by the enabling Act.
Judgment: The by-laws were declared invalid as ultra vires.
Significance: Limits delegated legislation to authorized activities only.
Case 4: R v. Home Secretary, ex parte Fire Brigades Union (1995)
Facts: Home Secretary failed to implement a compensation scheme despite delegated power.
Judgment: The court held that the executive must use delegated powers consistently with statutory purpose.
Significance: Confirmed judicial control over delegated legislation and executive discretion.
Case 5: British Oxygen Co. Ltd. v. Minister of Technology (1970)
Facts: Challenged the exercise of delegated legislative power on the ground of unreasonableness.
Judgment: Held that delegated legislation could be challenged on grounds of reasonableness.
Significance: Established that delegated legislation is subject to judicial review for irrationality.
4. Judicial Control of Delegated Legislation
Courts exercise control over delegated legislation on several grounds:
Ultra Vires: If it exceeds the powers conferred by the parent Act.
Procedural Impropriety: If proper procedures (e.g., consultation) are not followed.
Unreasonableness: If the legislation is arbitrary or unreasonable.
Conflict with Parent Act: If inconsistent with the primary legislation.
5. Conclusion
Delegated legislation is a vital tool for modern governance, enabling detailed and adaptable law-making. However, it must be exercised within the limits set by the parent Act and under judicial scrutiny to prevent misuse or abuse of delegated powers.
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