Delegated Legislation

Submitted by: Urvashi Srivastava  | B.A.,LL.B. (Hons.), 3rd Sem.

PROJEC  T :

DELEGATED LEGISLATION

Acknowledgement !"rs#$%, I &o'$d $"e #o e*ress m% *ro+o'nd sense o+  r-#"#'de #o&-rds #e -$m"#% +or *ro/"d"n me &"# #e -'#en#"0 0"r0'ms#-n0es &"0 &ere m-nd-#or% +or #e 0om*$e#"on o+ m% *ro1e0#.

Se0ond$%, I -m "$% "nde2#ed #o Dr. E2-$ H'ss-"n -# !-0'$#% o+ L-&, J-m"- 4"$$"- Is$-m"- 5n"/ers"#%, Ne& De$" +or *ro/"d"n me &"# 0ons#-n# en0o'r-emen# -nd '"d-n0e #ro'o'# #e *re*-r-#"on o+ #"s *ro1e0#.

4% 0-rd"n-$ #-ns -re -$so +or m% *-ren#s, +r"ends -nd -$$ #e-0ers o+ $-& de*-r#men# "n o'r 0o$$ee &o -/e -$&-%s 2een #e so'r0e o+ m% "ns*"r-#"on -nd mo#"/-#"on &"#o'# &"0 I &o'$d -/e ne/er 2een -2$e #o 'n-2r"ded m% *ro1e0#.

Urvashi Srivastava

Contents 

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Law Introduction Delegated Legislation What is delegated legislation • Importance of delegated legislation • Criticism of delegated legislation • Control of delegated legislation • Types of delegated legislation • Statute Journals or Law Reviews ByeLaws !rders Judicial Decisions Bi"liography

LAW

Law is a system of rules and guidelines which are enforced through social institutions to govern "ehaviour# Laws are made "y governments$ specifically  "y their legislatures# The formation of laws themselves may "e influenced "y a constitution %written or unwritten& and the rights encoded therein# The law shapes politics$ economics and society in countless ways and serves as a social 6

mediator of relations "etween people# To implement and enforce the law and  provide services to the pu"lic$ a government's "ureaucracy$ the military and  police are vital# While all these organs of the state are creatures created and  "ound "y law$ an independent legal profession and a vi"rant civil society inform and support their progress# Law provides a rich source of scholarly in(uiry into legal history$ philosophy$ economic analysis and sociology# Law also raises important and comple) issues concerning e(uality$ fairness$ and *ustice# "In its majestic equality" $ said the author +natole ,rance in -./0$ "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread."  Writing in 123

BC$ the 4ree5 philosopher +ristotle declared$ "The rule of law is better than the rule of any individual."

The law is divided into Primary and Secondary Sources of the Law. Primary Sources of Law 6 can "e divided into two categories6

%i& %ii&

legislation %statutes$ regulations$ and ordersincouncil& and case law %decisions of courts and administrative tri"unals&# 7rimary legal resources are the products of official "odies with the authority to ma5e law# Thus$ primary legal resources can affect the legal rights of  citi8ens#

Secondary Sources of Law6 are "ac5ground resources# 9nli5e primary

resources$ they do not have the power to affect legal rights$ and are referred to instead for their instructive value and for the references they provide to relevant  primary sources of law# Secondary legal resources include te)t"oo5s$ legal  *ournals$ legal encyclopaedias$ and case law digests:summaries# Because of the  "road overview of the law that they provide$ secondary legal resources can "e 3 an e)cellent starting point for legal research#

INT!#$TI!N

Delegated legislation in its various forms is a necessary source of law in a  progressive society# 7arliament simply cannot 5eep up with the need for law reform demanded "y society# The government formed within 7arliament has to fulfill the promised reforms %among other agenda& and there is definite pressure to see that these reforms are passed within the particular session# The lac5 of  speciali8ed 5nowledge among ;7s< ma5e DL a necessary avenue to ensure reasona"le and effective content of the law# It would "e unreasona"le to e)pect ;7s< to have specialised 5nowledge and understanding on a wide variety of  areas# Delegated power is also necessary

to ena"le a particular minister or 

 "ody of people to issue laws to deal with emergencies and unforeseen contingencies# 7assing an +ct of 7arliament is a particularly lengthy process and therefore unsuita"le to deal with emergencies# There

are

numerous

concerns

over

the

contri"ution

of

delegated:

secondary:su"ordinate legislation as a source of law in the 9=# The "ul5 of  reform via DL is alarming e#g# -33 +cts to 1333 pieces of DL and the concerns are *ustified# Delegated legislation %DL& is a generic term for legislation which is passed "y a su"ordinate "ody to whom 7arliament has delegated law ma5ing  powers# +t a higher level$ DL passed "y the 7rivy Council or ca"inet ministers or ministers are called !rders in Council$ Statutory Instruments and ;inisterial Regulations whereas DL issued "y Local Councils are called >"y laws<# 9ndenia"ly$ these laws are not passed "y ;em"ers of 7arliament as the  peoples< legislative representatives "ut "y "odies controlled "y the e)ecutive due to their uni(ue position as a power within 7arliament and having a degree of control over 7arliament# This threat is compounded "y the practice of su" delegation within the ministry#

7

%L%&AT% L%&ISLATI!N

What is ele'ated Le'islation(

Delegated legislation$ also referred to as secondary legislation$ is legislation made "y a person or "ody other than 7arliament# 7arliament$ through an +ct of  7arliament$ can permit another person or "ody to ma5e legislation# +n +ct of  7arliament creates the framewor5 of a particular law and tends only to contain an outline of the purpose of the +ct# By 7arliament giving authority for  legislation to "e delegated it ena"les other persons or "odies to provide more detail to an +ct of 7arliament# 7arliament there"y$ through primary legislation %i#e# an +ct of 7arliament&$ permit others to ma5e law and rules through delegated legislation# The legislation created "y delegated legislation must "e made in accordance with the purposes laid down in the +ct# The function of  delegated legislation is it allows the 4overnment to amend a law without having to wait for a new +ct of 7arliament to "e passed# ,urther$ delegated legislation can "e used to ma5e technical changes to the law$ such as altering sanctions under a given statute# +lso$ "y way of an e)ample$ a Local +uthority have  power given to them under certain statutes to allow them to ma5e delegated legislation and to ma5e law which suits their area# Delegated legislation  provides a very important role in the ma5ing of law as there is more delegated legislation enacted each year than there are +cts of 7arliament# In addition$ delegated legislation has the same legal standing as the +ct of 7arliament from which it was created#

I)P!TAN$% !* %L%&AT% L%&ISLATI!NS 8

There are several reasons why delegated legislation is important# ,irstly$ it avoids overloading the limited 7arliamentary timeta"le as delegated legislation can "e amended and:or made without having to pass an +ct through 7arliament$ which can "e time consuming# Changes can therefore "e made to the law without the need to have a new +ct of 7arliament and it further avoids 7arliament having to spend a lot of their time on technical matters$ such as the clarification of a specific part of the legislation# Secondly$ delegated legislation allows law to "e made "y those who have the relevant e)pert 5nowledge# By way of illustration$ a local authority can ma5e law in accordance with what their  locality needs as opposed to having one law across the "oard which may not suit their particular area# + particular Local +uthority can ma5e a law to suit local needs and that Local +uthority will have the 5nowledge of what is "est for the locality rather than 7arliament# Thirdly$ delegated legislation can deal with an emergency situation as it arises without having to wait for an +ct to "e passed through 7arliament to resolve the particular situation# ,inally$ delegated legislation can "e used to cover a situation that 7arliament had not anticipated at the time it enacted the piece of legislation$ which ma5es it fle)i"le and very useful to lawma5ing# Delegated legislation is therefore a"le to meet the changing needs of society and also situations which 7arliament had not anticipated when they enacted the +ct of 7arliament# $ITI$IS) !* %L%&AT% L%&ISLATI!NS

Delegated legislation is not without its criticisms# ,irstly$ it has "een suggested that "y having delegated legislation to ma5e and:or amend laws etc it lac5s democracy as too much delegated legislation is made "y unelected people# Secondly$ delegated legislation is su"*ect to less 7arliamentary scrutiny than  primary legislation# 7arliament therefore has a lac5 of control over delegated legislation and this can lead to inconsistencies in laws# In addition$ delegated legislation therefore has the potential to "e used in ways which 7arliament had 9

not anticipated when it conferred the power through the +ct of 7arliament# !ne further criticism of delegated legislation is the lac5 of pu"licity surrounding it# When law is made "y statutory instrument the pu"lic are not normally notified of it whereas with +cts of 7arliament$ on the other hand$ they are widely  pu"licised# !ne reason for the lac5 of pu"licity surrounding delegated legislation is "ecause of the volume of delegated legislation made and this results in the pu"lic not "eing informed of the changes to law# There has also  "een concern e)pressed that too much law is made through delegated legislation#

 $!NT!L !* %L%&AT% L%&ISLATI!NS

There are controls in place in relation to delegated legislation to ensure that those who ma5e law under it are doing it in an appropriate manner# 7arliament e)ercises control over delegated legislation in that when the +ct of 7arliament is created$ 7arliament stipulate in the +ct of 7arliament the parameters with regard to delegated legislation# ,urther$ there are scrutiny committees which consider  delegated legislation within a Bill as it passes through the ?ouses of 7arliament# Delegated legislation is also su"*ect to control through the Court# + piece of  delegated legislation can "e deemed "y the Court to "e ultra vires# This means that the "ody that created the delegated legislation acted "eyond the powers conferred to them "y statute# +n e)ample where a "ody would have acted ultra vires would "e if the delegated legislation goes "eyond what 7arliament intended or where the procedural rules to "e followed in relation to the delegated legislation have not "een followed# +ny Court action which is "rought challenging delegated legislation is done through the means of Judicial Review# If the Court finds that a piece of delegated legislation is ultra vires then that legislation can "e declared void# 

T+P%S !* %L%&AT% L%&ISLATI!NS

The following are the three main types of delegated legislation6 @ ,y Laws6 They are made "y Local +uthorities to deal with matters within their particular locality# @ Statutory Instruments6 These are made "y 4overnment ;inisters and they insert the detail to +cts of 7arliament# Statutory Instruments ma5e up the ma*ority of delegated legislation that is made# +round 1$333 Statutory Instruments are issued each year  @ !rders in $ouncil 6 They are made "y the Aueen on the advice of the 4overnment and are usually made when 7arliament is not sitting# They can "e used "y the 4overnment in emergency situations#

STAT#T%

+ statute is a formal written enactment of a legislative authority that governs a state$ city$ or county# Typically$ statutes command or prohi"it something$ or  declare policy# The word is often used to distinguish law made "y legislative  "odies from case law$ decided "y courts$ and regulations issued "y government agencies# Statutes are sometimes referred to as legislation or "lac5 letter law# +s a source of law$ statutes are considered primary authority %as opposed to secondary authority&# Ideally all statutes must "e in harmony with the fundamental law of the land %constitutional&#

;

This word is used in contradistinction to the common law# Statutes ac(uire their  force from the time of their passage$ however unless otherwise provided# Statutes are of several 5inds namely$ • • •

7u"lic or private# Declaratory or remedial# Temporary or perpetual#

+ temporary statute is one which is limited in its duration at the time of its enactment# It continues in force until the time of its limitation has e)pired$ unless sooner repealed# + perpetual statute is one for the continuance of which there is no limited time$ although it may not "e e)pressly declared to "e so# If$ however$ a statute which did not itself contain any limitation is to "e governed  "y another which is temporary only$ the former will also "e temporary and dependent upon the e)istence of the latter# Before a statute "ecomes law in some countries$ it must "e agreed upon "y the highest e)ecutive in the government$ and finally pu"lished as part of a code# In many countries$ statutes are organi8ed in topical arrangements %or codified& within pu"lications called codes$ such as the 9nited States Code# In many nations statutory law is distinguished from and su"ordinate to constitutional law#

-!#NALS ! LAW %I%WS

Law review or *ournal articles are another great secondary source for legal research$ valua"le for the depth in which they analy8e and criti(ue legal topics$ as well as their e)tensive references to other sources$ including primary sources# Law reviews are scholarly pu"lications$ usually edited "y law students in con*unction with faculty mem"ers# They contain "oth lengthy articles and <

shorter essays "y professors and lawyers$ as well as comments$ notes$ or  developments in the law written "y students# Law review articles often focus on new or emerging areas of law and they can offer more critical commentary than a legal encyclopedia or +LR entry# Some law reviews are dedicated to a particular topic$ such as gender and the law or environmental law$ and will include in their contents the proceedings of a wide range of panels and symposia on timely legal issues# ,+%/LAWS

,y/law %sometimes also spelled 0ylaw$ 0y law or 0yelaw& can refer to a law of 

local or limited application passed under the authority of a higher law specifying what things may "e regulated "y the "ylaw# It can also refer to the internal rules of a company or organi8ation# In the conte)t of local laws$ "ylaw is more fre(uently used in this conte)t in Canada$ the 9nited =ingdom and some Commonwealth countries$ whereas in the 9nited States$ the words code$ ordinance or regulation are more fre(uent# +ccordingly$ a "ylaw enforcement officer   is the Canadian e(uivalent of the +merican Code nforcement !fficer or ;unicipal Regulations nforcement !fficer#

!%S

+ court order %a type of court rulin'& is an official proclamation "y a *udge  %or panel of *udges& that defines = the legal relationships "etween the

 parties to a hearing$ a trial$ an appeal or other court proceedings# Such ruling re(uires or authori8es the carrying out of certain steps "y one or more parties to a case# + court order must "e signed "y a *udge some *urisdiction may re(uire it to "enotari8ed# The content and provisions of a court order depend on the type of proceeding$ the phase of the proceedings in which they are issued$ and the procedural and evidentiary rules that govern the proceedings# +n order can "e as simple as setting a date for trial or as comple) as restructuring contractual relationships "y and "etween many corporations in a multi *urisdictional dispute# It may "e a final order %one that concludes the court action&$ or an interim order %one during the action&# ;ost orders are written$ and are signed "y the *udge# Some orders$ however$ are spo5en orally "y the *udge in open court$ and are only reduced to writing in the transcript of the  proceedings#

-#I$IAL %$ISI!NS

Judicial decision:*udgment is the %law& determined "y a court of competent  *urisdiction on matters su"mitted to it# These *udicial decisions are later on followed in many legal proceedings and are served

as

a

legal

material#

In common

law legal

systems$

a 1recedent or authority is a principle or rule esta"lished in a previous legal case that is either "inding on or persuasive for a court or other tri"unal when deciding su"se(uent cases with similar issues or facts# The general principle in common law legal systems is that similar cases should "e decided so as to give similar and predicta"le outcomes$ and the principle of precedent is the mechanism "y which that goal is attained# Blac5's Law Dictionary defines 

precedent as a rule of law esta"lished for the first time "y a court for a  particular type of case and thereafter referred to in deciding similar  cases#E-F common law precedent is a third 5ind of law$ on e(ual footing with statutory

law %statutes and

codes

enacted

"y legislative "odies&$

andregulatory law %regulations promulgated "y e)ecutive "ranch agencies&#  Stare decisis %+ngloLatin pronunciation6 :ˈstɛGridɨˈsaɪ sɨs& is a legal principle "y

which *udges are o"liged to respect the precedent esta"lished "y prior decisions# The words originate from the phrasing of the principle in the Latin ma)im Stare decisiset non quietamovere6 to stand "y decisions and not distur" the undistur"ed#EHF In a legal conte)t$ this is understood to mean that courts should generally a"ide "y precedent and not distur" settled matters# EHF

$ase law is the set of e)isting rulings which made new interpretations of law

and$ therefore$ can "e cited as precedent# In most countries$ including most uropean countries$ the term is applied to any set of rulings on law which is guided "y previous rulings$ for e)ample$ previous decisions of a government agencythat is$ precedential case law can arise from either a *udicial ruling or a ruling of an ad*udication within an e)ecutive "ranch agency# Trials and hearings that do not result in written decisions of a court of record do not create  precedent for future court decisions#

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Bibliography -& TTB!!= ! L4+L ;T?!D$L4+L SKST; RS+RC?6 7R!,# T9S?+R =# S+?+ H& L+RI4 T? L+W6 4L+ILL WILLI+;S

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