Procedural control on Delegated legislation
Delegated legislation is allowing bodies below the parliament to pass their own
legislation. There are three main forms of delegated legislation they are, statutory
instruments, by-laws and Orders in Council. Statutory instruments are constructed by
the Government departments. For example, the Parent Act permit’s the parliament
about how legislation can be written and handle with. They are also engaged in the
other Commonwealth countries other than the UK such as Canada. The Proclamation of
the Queen of Canada was brought into impact and introduced the Constitution Act 1982
which is UK is known as the Canada Actj 1982. By-laws are created by the local
authorities which ’have to be approved by the central Government’. For example, the
smoking ban in public areas in London is a by law because other local authorities can
apply these regulations about public attitudes on their assertion. Orders in Council are
made by the government in an emergency, they are rafted by the concerning
Government departments, approved by the Privacy Council and signed by the Queen. It
is exceedingly important as it can affect many individuals, moreover Orders in Council
could have been used during the seventh of July 2005 London bombings.
Delegated Legislation is deemed necessary for a number of reasons. Firstly, the
parliament does not have the time to deliberate and debate every detail of complicated
rules. Delegated legislation allows laws to be made quickly than Parliament as
Parliament does not sit all the time and its procedure is rather slow because each Bill
has to pass through all the stages. Another reason why delegated legislation is
necessary is because MP’s do not frequently have the technical ability required.
Knowledge is required for example, at work for safety or when carrying out difficult
taxation proposals, this is where delegated legislation can use their professionals in
their favoured topics. Furthermore, for the local individuals it is vital that they recognise
and take into account their needs. The democratic bodies have important powers to
make delegated legislation . It can also be easily revoked so that legislation can be
updated frequently for the such as concerning welfare benefits. Delegated legislation
comes into great benefit when problems occur concerning the result of a statue.
There are a numerous critical reasons why it is necessary to have control over
delegated legislation . Taking into account that delegated legislation is made by elected
representatives, individuals have the aptitude to pass delegated legislation. Without
control, there would be many absurd laws such as the ‘Strickland V Hayes Borough
Council (1986)’. In this case, a by-law prohibited an indecent song which was held by the
court as invalid. There are a number of cases where delegated legislation has come into
power to abstain damage to authorities for example, the National Union of Teachers
(2000). A criticism of delegated legislation is that too often power is given to other
individuals rather than those who had power at the beginning. Also, with access
delegated legislation critics have argued that there is overuse in the law.
Delegated legislation is controlled by the Parliament and the judiciary. Overall, the
Parliament has control along with statutory committees who take into account the
delegated powers made by a Bill. Using the negative resolution procedure statutory
instruments can become legislation in either two ways. One of the ways it commences
is when after the statutory instruments is written, it is shown to Parliament. However, if
after forty days there are no counter arguments it instantly becomes law, if there is
some concern then it is debated upon. The other procedure is more oppressive as the
Parliament does not amend any statutory instruments in fact only one out of ten
instruments are passed under this procedure. This is because this situation has to be
debated upon and by both Houses within twenty-eight to forty days. There are
disadvantages to this as it may take longer for Parliament to raise any issues especially
from other parties. In reality, it’s highly unlikely for the Government not to reach a
majority when so many votes are taken into account.
PROCEDURAL/ADMINISTRATIVE/EXECUTIVE CONTROL.
Executive legislating under delegated legislation is ordinarily free from rigid procedural
requirements unless the legislature makes it mandatory for the executive to abide by a certain
procedure. This is because rigid procedural requirements may turn out to too time consuming
and cumbersome and they may defeat the very purpose of delegated legislation. However,
communication in one form or other to the general public still remains indispensable for the law
to be legally valid and binding. Hence procedural control means certain procedures which are
laid down in the parent Act which have to be followed by the authorities while making the rules.
Delegated legislation may be challenged on the ground that it has been in accordance with the
procedure prescribed by the enabling Act. However, rules become invalid on the ground of non-
compliance with prescribed procedure only if such procedure is mandatory.
Non-compliance with the directory provisions does not render them invalid. It becomes a case
of procedural alternatives. One has to see whether the procedure is mandatory or
directory. Procedural control mechanism operates in three components:
(i) Pre-publication and consultation with an expert body or approval of an authority.
(ii) Publication of delegated legislation.
(iii) Laying of the rules before the legislature.
This procedural control mechanism may be either mandatory or directory. For the purpose of
mandatory or directory control mechanisms few important parameters should be taken into
account viz (a) Scheme of Act (b) Intention of legislature i.e. whether treated mandatory or
directory (c) language in which the provision is drafted (d) Serious inconvenience being caused
to the public at large, these were four parameters laid down in case.
Raza Buland Sugar Co. v.Rampur Municipal Council (AIR 1965 Sc 895).
(1) Consultation and Pre-publication.”
The “modus-operandi” is regarded as a valuable safeguard against the misuse of legislative
power by the executive authorities. The effect of the term previous publication according to
S.23 of General Clause Act, 1897 is that:
(i) The rules should be published in draft form in Gazette.
(ii) Objections and suggestions be invited by a specific date mentioned there in, and
(iii) Those objection and suggestions be considered by rule-making authority.
In India, a provision of prior consultation, if contained in the enabling Act is considered
sometimes as mandatory and sometime as directory. In issue like environment, this
requirement is considered as mandatory in nature.
The provisions for prior consultation may take various forms:
(a) Official consultation: The central govt. is required to make rules U/s 52 of the Banking
Companies Act, after consulting the Reserve Bank of India.
(b) Consolation with statutory bodies: Incharge of a particular subject.
(c) Consultation with Administrative boards.
(d) Consultation with affected persons: Municipalities, before tax imposition have to publish
draft rules in a Hindi daily and consult the inhabitants of the area. Under the industries
development and regulations act, representations from the industry and public are invited.
(e) Draft Rules and Affected interest: Under Indian Mines Act, Sec.61 empowers owner of a
time to frame or to draft rules themselves for safety etc. n mines and submit them to inspector of
mines. Such rule becomes operative on being approved by the government.
In Ibrahim vs. Regional Transport Authority (Air 1953 SC 79), consultation with the Municipality
was required to be made the Transport Authority before certain routes for buses were
fixed. The S.C. held it to be merely directory.
(2) PUBLICATION (POST NATAL PUBLICITY)’
It is a fundamental principal of law “ignorantia jris non excusat” (ignorance of law is no excuse)
but there is also another equally established principle of law that the public must have the
access to the law and they should be given an opportunity to know the law. All laws ought
either to be known or at least laid open offend against them under pretence of ignorance. It is
essential that adequate means are adopted to publicize the rules so that people are not caught
on the wrong foot, in ignorance of the rules applicable to them in a given situation.”
Thus, in Harla v. State of Rajasthan (Air 1951 SC 467) the council by resolution enacted the
Jaipur opium Act which made rule that if a person carried opinion beyond a certain limit then it
was an offence committed and penalty had to be imposed on the accused & act was never
published. One Harla was prosecuted for the contravention of this law because he was in
possession of opium in more quantity than permitted. He contended that it was a case of
procedural ultravires. Holding that the law was not enforceable the Supreme Court observed.
“promulgation or publication of some sort is essential other wise it would be against principles of
natural justice to punish the subject under a law of which they had no knowledge and of which
they could not even with the exercise f reasonable diligence be said to have acquired any
knowledge.”
In Narendra Kumar v.s U.O.I. (AIR 1960 Sc 430) Sec.3 of Essential commodities Act, 1955
required all the rules to be made under the Act to be notified in official gazette. The principles
applied by licensing authority for issuing permits for the acquisition of non-ferrous metals were
not notified. The S.C. held the rules ineffective because the mode of publication i.e. in Official
Gazette was held to be mandatory.
NECESSITY OF PUBLICATION
Whether the requirement as to be mode of publication of rules is mandatory or directory? Will
the rules be valid if to published in official gazette but circulated in any other mode?
Form the point of view of the individual it is infair to publish the rule is obscure publication. First
publication in required mode creates certainty in the mind of the individual that rules have been
duly made. Secondly it enables him to have say access ability to the rules.
In Raza Buland Sugar Co. v. Rampur Municipality (AIR 1965 SC 896) for the S.C. Wanchoo, J.
observed. ‘The question whether a particular provision of statute which on the face of a
appears mandatory or is merely directory cannot be laying down any general rule and depends
upon the facts of each case and for that purpose the object of the statute in making the
provision is the determining factor. The language of the provision have all to be taken into
account in arriving at the conclusion whether particular provision is mandatory or
directory.” Further, the medium of publication has been held to be a mandatory requirement.
Conclusion
Delegated legislation is the legislation that proceeds from another authority
that is not of ultimate power. Numerous factors stand as the reason for the
quick growth of delegated legislation is every democratic state of today.
Delegated legislation has also become very important and unavoidable.
‘Statutory rules and orders’ is the term that expresses delegated legislation in
India. It is also important to note that basic functions of the legislation cannot
be delegated to the executive by the legislature. If in India, Parliamentary control overlaps
the delegated legislation then it is mandatory that the committee of parliament need to be strong
enough and separate laws should be made and passed which give a uniform rule for laying down and
publication purposes. A committee must contain a special body to look on the delegated work whether
it’s going in the right direction and effectively or not. All the three organs should focus on their work
and do not interrupt unnecessarily to prevent chaos in the system.
