AN EVALUATION OF RULE MAKING POWER OF ADMINISTRATIVE
AUTHORITY IN THE UK
6.2 ADMINISTRATIVE LAW
Submitted by
KRISHNA KANT JAIN
UID No.- SM0115022
Third Year Sixth Semester
National Law University and Judicial Academy, Assam
Table of Contents
Introduction......................................................................................................................................1
Review of Literature........................................................................................................................1
Aim and Objective...........................................................................................................................2
Scope and Limitation.......................................................................................................................2
Research Questions..........................................................................................................................2
Research Methodology....................................................................................................................3
Rule Making and Law Making.....................................................................................................3
Delegated Legislation.....................................................................................................................3
Need for Delegated Legislation.....................................................................................................5
Objections against delegated legislation......................................................................................5
Rule Making Power in USA..........................................................................................................6
Separation of Power in USA and Delegated Legislations..........................................................7
Rule Making Powers in United Kingdom....................................................................................9
Comparative Analysis of Rule Making Power in UK and USA..............................................10
Conclusion.....................................................................................................................................12
i
Table of Cases
Board of Education v. Rice
Bruce v. United States
Field v. Clarke
Local Government Board v. Arlidge
Panama Refining Co. v. Ryan
Poultry Corpn v. United States
Table of abbreviation
Sr. No. Abbreviation Expansion
1. AIR All India Reporter
2. All Allahabad
3. Anr. Another
4. Bom Bombay
5. HC High Court
6. Ibid Ibidem
7. Pp Pages
8. Raj Rajasthan
9. SCC Supreme Court Cases
10. Vol. Volume
11. Ed. Edition
12. PC Privy Council
13. LR Law Review
ii
Abstract
In administrative law, rule-making is the process that executive and independent agencies use to
create, or promulgate, regulations. Federal and state legislative branches may grant rule-
making powers to administrative agencies. Administrative agencies promulgate regulations
according to federal or state laws. In a country with a written Constitution, the powers of the
legislature are circumscribed by the restrictions and limitations embodied in the Constitution.
Separation of power as a doctrine has not existed in England. The delegation of powers to make
rules and laws differ in certain aspects in USA and UK. Although the need to delegate such
powers arose as a contemporary requirement, the powers are different in both the countries.
Keywords: Rule-making, Legislature, Delegated Legislation, Separation of power
Introduction
The process of developing regulations is called rulemaking. In administrative law, rule-making is
the process that executive and independent agencies use to create, or promulgate, regulations. In
general, legislatures first set broad policy mandates by passing statutes, then agencies create
more detailed regulations through rulemaking. Law making on the other hand, is the exclusive
domain of the legislature. Lawmaking is the process of crafting legislation. In its purest sense, it
is the basis of governance. In the United States, the legal theories of separation of power and the
doctrine of delegate potestas non potest delegari provided for initial impediments to the
delegation of power. In UK the process of rule-making is entirely dependent on the supremacy of
the Parliament.
The researcher in the project work has done a study on the rule making powers of the executive
and the administrative authorities. A comparative study has been made on the rule making
powers in UK and USA.
Review of Literature
I.P. Massey, Administrative Law, 8th Edition, Eastern Book Company, Lucknow, 2012
1
This book provides a comprehensive, authoritative and lucid treatment of the subject,
compressing in its volume a vast amount of essential information. The work touches upon and
explains many grey areas in administrative law. It covers all the aspects of the administrative law
including India and abroad and provides an insight on the development of the administrative law.
Mark Elliot, Administrative Law Text and Materials, 4th Edition, Oxford University
Press, Chennai, 2005
The book combines carefully selected extracts from key cases, articles, and other sources with
detailed commentary and explanation. An essential text while studying the development of the
administrative law. Rather than simply presenting administrative law as a straight forward body
of legal rules, this engaging, critical text considers the subject as an expression of underlying
constitutional and other policy concerns and origin and development of Administrative Law.
Aim and Objective
The aim of the researcher while carrying out the project work has been to understand the concept
of delegated legislation that bestows rule-making powers to the executive.
The objective of the researcher is to analyse the rule making powers in USA and United
Kingdom so as to be able to carry out a comparative analysis of the powers in both the countries.
Scope and Limitation
The scope of the project work has been limited to understanding the concept of delegated
legislation in UK and USA. The researcher has made a comparative analysis of the powers in
both the countries.
Research Questions
The researcher has faced the following questions while carrying out the project work:
What is meant by rule-making power?
How is legislative power delegated?
To what extent can such delegation of power be allowed?
What are the practices in UK and USA?
In what ways do such powers differ?
2
Research Methodology
The research methodology adopted is a doctrinal method of research. The researcher has also
utilized explanatory and analytical methods of research in order to explain and analyze the rule
making powers in USA and UK. Secondary sources of data have been used as the researcher has
used books from the library and various articles from journals available in the library as well as
online sources.
Rule Making and Law Making
In administrative law, rule-making is the process that executive and independent agencies use to
create, or promulgate, regulations. In general, legislatures first set broad policy mandates by
passing statutes, following which, the agencies create more detailed regulations through
rulemaking. By bringing detailed scientific and other types of expertise to bear on policy, the
rulemaking process has been the means by which some of the most far-reaching government
regulations of the 20th century have been created. Legislatures rely on rulemaking to add more
detailed scientific, economic, or industry expertise to a policy—fleshing out the broader
mandates of authorizing legislation. For example, typically a legislature would pass a law
mandating the establishment of safe drinking water standards, and then assign an agency to
develop the list of contaminants and safe levels through rulemaking. 1Law making on the other
hand, is the exclusive domain of the legislature. Lawmaking is the process of crafting legislation.
In its purest sense, it is the basis of governance. Lawmaking in modern democracies is the work
of legislatures, which exist at the local, regional, and national levels and make such laws as are
appropriate to their level, and binding over those under their jurisdictions. Federal and state
legislative branches may grant rule-making powers to administrative agencies. Administrative
agencies promulgate regulations according to federal or state laws. Each agency is responsible
for a specific area of law and has the authority to investigate and enforce laws within its
specialty.2 These rules carry the force of law.
Delegated Legislation
Delegated legislation is not a new phenomenon. The legislature has to deal with important
matters such as foreign affairs, economic policies or other developmental works. As such it may
1
Mark Elliot, ADMINISTRATIVE LAW: TEXTS AND MATERIALS, 4th ed., 2010, p. 540
2
Marie Huntington, “What Is the Difference Between a Statute & an Administrative Agency Order?”
http://yourbusiness.azcentral.com/difference-between-statute-administrative-agency-order-13244.html
3
not be able to spare time to add details to the laws that it enacts. It may also lack the technical
expertise to deal with some matters. Such matters are filled in by the executive through what is
called delegated legislation. While the Statute of Proclamations in 1539 gave extensive powers to
Henry VIII the Statue of Sewers, 1531 was the harbinger of a more general trend. 3Delegated
legislations takes a number of forms and a number of different terms – rules, regulations, bye-
laws etc. ‘Enabling provisions’ demarcate the extent of administrative power to enact
legislations. Any executive legislation enacted outside the terms of the enabling provisions will
be ultra vires and vulnerable to judicial review.4
Delegated legislation has been defined by Salmond as ‘that which proceed from an authority
other than the sovereign power and is therefore dependent for its continued existence and validity
on some superior or supreme authority.’ 5 The term delegated legislation may be used in two
senses: a) the exercise of law-making power by the administrative authority delegated to it by the
legislature and b) the actual exercise of law-making power itself in the form of rules and
regulation. The most common type of delegated legislation is the power given to fill in details.
The legislature passes the skeleton and empowers the executive to provide the flesh and bones of
the legislation.6Many Acts contain the provisions for conferring extensive powers of delegated
legislation on the executive. The purpose of such provision is to enable the executive to remove
difficulties in the implementation of the Act and to effectuate its purpose and policy.
However, limitations are put on such powers. In a country with a written Constitution, the
powers of the legislature are circumscribed by the restrictions and limitations embodied in the
Constitution. It is the function of the Courts to see that the limitations and restrictions are
enforced. In England, Parliament being the supreme, there is no limit to the legislative powers of
the Parliament. But the House of Lords has criticized the wide legislative powers of the
Parliament.7In the United States, an Act delegating legislative power would be void unless the
Constitution permits such delegation.8
3
Paul Craig, ADMINISTRATIVE LAW, 6th ed., 2011, p.716
4
Mark Elliot, ADMINISTRATIVE LAW: TEXTS AND MATERIALS, 4th ed., 2010, p.622
5
SP Sathe, ADMINISTRATIVE LAW, 7th ed., 2004, p.29
6
Ibid, p.36
7
Daymond v. South West Water Authority [1976] AC 609
8
SP Sathe, ADMINISTRATIVE LAW, 7th ed., 2004, p.37
4
Need for Delegated Legislation
The process of delegated legislation enables the Government to make a law without having to
wait for a new Act of Parliament to be passed. Further, delegated legislation empowers the
authority to modify or alter sanctions under a given statute or make technical changes relating to
law. Delegated legislation plays a very important role in the process of making of law as there is
more delegated legislation 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.
Delegated Legislation is important because of several reasons. They are-
1. Delegated Legislation reduces the burden of already overburdened Legislature by
enabling the executive to make or alter the law under the authority of Legislature. Thus,
this helps the Legislature to concentrate on more important matters and frame policies
regarding it.
2. It allows the law to be made by those who have the required knowledge and experience.
For instance, a local authority can be permitted to enact laws with respect to their locality
taking into account the local needs instead of making law across the board which may not
suit their particular area.
3. The process of delegated legislation also plays a significant role in an emergency
situation since there is no need to wait for particular Act to be passed through Parliament
to resolve the particular situation.
4. Finally, delegated legislation often covers those situations which have not been
anticipated by the Parliament during the time of enacting legislation, which makes it
flexible and very useful to law-making. Delegated legislation is, therefore, able to meet
the changing needs of society and also situations which Parliament had not anticipated
when they enacted the Act of Parliament.9
Objections against delegated legislation
The fact that delegation is indispensable and inevitable due to practically convincing needs, it
has not been a bar to theoretical challenges and criticisms against it. The main constitutional
9
Harsha Jesawni, “Analysis Of The Concept Of Delegated Legislation”, https://blog.ipleaders.in/analysis-concept-
delegated-legislation/
5
objection raised against delegation of rule-making power to administrative agencies has been the
doctrine of non delegability of power, which holds that power delegated to one branch may not
be redelegated to another. People elect their representatives based on their fitness, knowledge
and ability to represent their interest. Hence, it is a generally accepted rule that this mandate
bestowed by the people cannot be delegated to another individual or organ, which does not stand
in a direct relation to the people. It is a cardinal principle of representative government that the
legislature cannot delegate the power to make laws to any other body or authority. objection to
delegation of power is based on the doctrine of separation of powers. In America, the doctrine of
separation of powers has been raised to a constitutional status. The U.S. Supreme Court has
observed that the doctrine of separation of power has been considered to be an essential principle
underlying the constitution and that the powers entrusted to one department should be exercised
exclusively by that department without encroaching up on the power of another. It is argued that
delegated legislation enables authorities other than Legislation to make and amend laws thus
resulting in overlapping of functions. It against the spirit of democracy as too much-delegated
legislation is made by unelected people.10 Delegated legislation is subject to less Parliamentary
scrutiny than primary legislation. Parliament, therefore, has a lack of control over delegated
legislation, and this can lead to inconsistencies in laws. Delegated legislation, therefore, has the
potential to be used in ways which Parliament had not anticipated when it conferred the power
through the Act of Parliament.11 Delegated legislation generally suffers from a lack of publicity.
Since the law made by a statutory authority is not notified to the public. On the other hand, the
laws of the Parliament are widely publicized. The reason behind the lack of publicity is the large
extent of legislation that is being delegated. There has also been concern expressed that too much
law is made through delegated legislation.12
Rule Making Power in USA
In the United States, the legal theories of separation of power and the doctrine of delegate
potestas non potest delegari provided for initial impediments to the delegation of power. Further,
the Constitution of the United States is positioned on the theory of delegation of enumerated
10
Ibid
11
Ibid
12
Aberham Yohannes and Desta G. Michael “The Nature and Definition of Delegated Legislation”,
http://www.abyssinialaw.com/study-on-line/item/309-the-nature-and-definition-of-delegated-legislation
6
powers by the people to the Congress, the President and the Supreme Court. Since the Congress
was itself a delegate, the further re-delegation of power could not be possible.
Separation of Power in USA and Delegated Legislations
The doctrine of separation of power was gospel to the settlers who were obsessed with the
violation of their life, liberty and dignity by the monarchs in England who combined all the
powers. Therefore, the drafters of the Constitution of USA made this doctrine the basic brick of
the Constitution. The Separation of Powers devised by the framers of the Constitution was
designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on
their experience, the framers shied away from giving any branch of the new government too
much power.13 According to Thomas Jefferson, “Concentration of legislative, executive and
judicial powers in the same hand is precisely the definition of a despotic government.” 14The
doctrine of Separation of Powers forms the foundation on which the whole structure of the
Constitution is based. It has been accepted and strictly adopted in U.S.A. Article I, Section 1
vests all legislative powers in the Congress. Article II, Section 1 vest all executive powers in the
President and Article III, Section 1 vests all judicial powers in the Supreme Court. 15On the basis
of this theory of separation of power the US Supreme Court has not been given power to decide
political questions, so that the court may not interfere with the exercise of the executive branch
of the government. However the American constitutional developments have shown that in the
face of complexity of modern government, strict structural classification of the powers of the
government is not possible.16The President has interfered with the functioning of the Supreme
Court when President Roosevelt threatened to pack the court in order to get support for his New
Legislation. The Congress has also interfered with the powers and functions of the President
through vote on budget, approval of appointments by the Senate and the ratification of treaty.
Strict adherence to the theories of separation of power has proved to be impracticable in USA as
the State undertook more and more functions. The courts could not deny reality and therefore
evolved the theory which admitted the delegation in fact while refuting it in name. The Congress,
it said, could not delegate essential legislative functions though it could delegate the power to fill
13
“Separation of Power”, https://www.usconstitution.net/consttop_sepp.html#america
14
I.P Massey, ADMINISTRATIVE LAW, 9th ed.,2017, p.40
15
Prachi Shah, “Separation of Powers in India and USA”,
http://www.legalservicesindia.com/article/article/separation-of-power-in-india-&-usa-483-1.html
16
I.P Massey, ADMINISTRATIVE LAW, 9th ed.,2017, p.40
7
up details.17 Perhaps the earliest recognition of the general significance field of governmental
action, is in a pamphlet entitled "Remarks Army Regulations," by G. Norman Lieber, Judge
Advocate of the Army, which was originally printed in 1987.18During the period of the New Deal
Legislation, the Supreme Court twice struck down provisions relating to delegation of legislative
powers.19In the case of Field v. Clarke20it was held that the power entrusted in one department
should exclusively be exercised by that department without encroaching upon the powers of
another. Hence legislative power cannot be delegated by the Congress. The first case in which
the Supreme Court made it unconstitutional was the Panama Refining Co. v. Ryan.21President
Roosevelt had passed a series of Acts in an effort to stop the downward spiral of the economy.
Under one such Act, the President had the power to prohibit the transportation, in the inter-state
and foreign commerce, of petroleum. This delegation was challenged by the Panama Refining
Co. The Court conceded that legislation must often be adapted to complex conditions involving a
host of details with which the national legislature could not deal directly. The Constitution has
never been regarded as denying to the Congress the necessary resources of flexibility and
practicability which would enable it to perform its functions in laying down policies and
establishing standards.22It however held that the delegation was invalid as the impugned sections
did not contain any standards. The impugned Act gave unlimited authority to the President to
determine the policy and to lay down prohibitions. In the case of Schechter Poultry Corpn v.
United States23, the Court unanimously struck down Section 3 of the National Industrial
Recovery Act on the ground of excessive delegation. These two cases established the
constitutional principle that where the legislature delegates its legislative power, it must lay
down the legislative policy and adequate standards in accordance with which the delegated
power is to be exercised.
Dynamic interpretation of the Constitution has today been made in USA, the role being played
by the American judiciary. Justice Marshell was of the opinion that it is possible to delegate
power. One should not strictly follow the theoretical aspect but rather look into the legal
17
Springer v. Government of Phillipine Islands, 277 US 189
18
John A. Fairlie, “Administrative Legislation”, Michigan Law Review, Vol. 18, No. 3 (Jan., 1920), p.181
19
SP Sathe, ADMINISTRATIVE LAW, 7th ed., 2004, p. 38
20
(1891)
21
293 US 388 (1934)
22
SP Sathe, ADMINISTRATIVE LAW, 7th ed., 2004, p. 38
23
295 US 495 (1935)
8
necessities. The important functions must be undertaken by the Congress. Only in case of
unimportant functions, the rule-making powers should be delegated. Today in America, there are
indeed, besides presidential proclamations and executive orders, many elaborate systems of
executive regulations governing the transaction of business in each of the executive departments
and in the various services both within and without these departments. These include organized
codes of regulations for the army, the navy, the postal service, the consular services etc. 24 In
addition to the systematized and codified regulations, there perhaps an even more extensive body
of more specialized orders, and instructions issued by the various departments, commissions, and
local agents, knowledge of which is often to the persons who have to apply them and to those
whom they affect. The Secretary of the Interior is authorized to prescribe regulations governing
the recognition of agents, attorneys or other persons representing claimants before his
department; and more specific provisions are made in reference to the work land off. 25 The
commissioner of patents, subject to the office of the Secretary of the Interior, may prescribe
regulations, consistent with law, for the conduct of proceedings in the office. The bureau of
mines may issue regulations under Explosives Act.26 Army Regulations were for many years
based on the constitutional powers of the President but there are now statutory provisions
authorizing the President to make and publish regulations for the army in accordance with
existing laws.27 Under existing statutes the President has specific and positive authority to issue
instructions and orders to the Secretary of State, the Secretary of War and the Secretary of the
Navy. He can also cause the Secretary of the Treasury to promulgate regulations for a special
purpose.28
Rule Making Powers in United Kingdom
According to A.V.Dicey administrative law does not hold any place in England. In France, Dicey
observed that when a dispute arose between the public and the government officials, the matter
was solved not by the ordinary courts but by special administrative courts. For him, this meant a
complete negation of the rule of law. Therefore, he held that such kind of system did not exist in
England. However, there existed special courts in England even during his time. There were
24
John A. Fairlie, “Administrative Legislation”, Michigan Law Review, Vol. 18, No. 3 (Jan., 1920), p.182
25
Ibid, p.185
26
Bruce v. United States (C. C. A., 8th C., 1912)
27
John A. Fairlie, “Administrative Legislation”, Michigan Law Review, Vol. 18, No. 3 (Jan., 1920), p.185
28
John A. Fairlie, ‘The Administrative Powers of the President’ , Michigan Law Review, Vol. 2, No. 3 (Dec., 1903),
p. 201
9
special tribunals established under the Poor Law Amendment Act, 1834 where the Boards were
exercising legislative and adjudicatory powers. Inspired by the decisions of the House of Lords
in Local Government Board v. Arlidge29and Board of Education v. Rice30wherein the
administrative agency was authorized to decide even a question of law, Dicey himself recognised
his mistake and observed that there exists in England a vast body of administrative law.31
Separation of power as a doctrine has not existed in England. The constitutional developments in
England show that after a long war between the Parliament and the King, the Parliament
triumphed in 1688 which gave the Parliament legislative supremacy in the passage of the Bill of
Rights. Immediately after this the King exercised executive powers and the Parliament exercised
legislative powers. Later on England did not stick to the structural classification of functions and
changed to the parliamentary form of government. The King, although the executive head, is also
an integral part of the legislature. Legislative and adjudicatory powers are being increasingly
delegated to the executive.32
Before the glorious Revolution, the Parliament had been “delegating legislative powers in some
matters, though the old prerogative machinery, by authorizing statutory Orders in Council”. 33But
from the early part of the 18th Century to the early decades of the 19th Century, the practice was
gradually abandoned. The legislative monopoly grew. By about 1832 this monopoly again began
to relax. Powers to issue rules and regulations were more and more frequently delegated to the
executive as the volume of social legislations gradually increased. The UK government made
over 3000 statutory instruments in 2008.34Such legislations are now fixed parts of public life and
the general concerns as to its compatibility with classical constitutional principles have been
eclipsed by more specific anxieties relating to its scale and nature.
Comparative Analysis of Rule Making Power in UK and USA
The delegation of powers to make rules and laws differ in certain aspects in USA and UK.
Although the need to delegate such powers arose as a contemporary requirement, the powers are
different in both the countries. In USA, strict separation of power exists as a result of the
29
1915 AC 120 (HL)
30
1911 AC 179 (HL)
31
I.P Massey, ADMINISTRATIVE LAW, 9th ed.,2017, p. 33
32
Ibid, p.40
33
Mark Elliot, ADMINISTRATIVE LAW: TEXTS AND MATERIALS, 4th ed., 2010, p.621
34
www.opsi.gov.uk/si-statistics.htm
10
Constitutional provisions. The presence of a written Constitution in USA makes it harder to
bypass the doctrine. Delegation of powers to make laws did not exist in USA since long past.
Article I provides that the all the legislative powers lie in the hands of the Congress. Therefore,
such powers cannot be further delegated. However, the powers of the executive to make rules as
per the Constitution, has been dynamically interpreted by the American judiciary. Today it has
been made possible to delegate the legislative powers in case of non-essential functions. The
important and substantial functions have to be exercised by the Congress. The unimportant
functions can be delegated. As under the Constitution, the Congress can alone make laws, a
legislation has been passed so as to enable the delegation of powers called the Administrative
Procedure Act (APA). Through this Act the administrative agencies of the federal government of
the United States may propose and establish regulations. The APA requires that in order to set
aside agency action not subject to formal trial-like procedures, the court must conclude that the
regulation is "arbitrary and capricious, an abuse of discretion, or otherwise not in accordance
with the law."35However, Congress may further limit the scope of judicial review of agency
actions by including such language in the organic statute. Therefore, in USA there are specific
federal agencies apart from the executive organs to which the legislative powers are delegated.
The doctrine of separation of power does not exist in UK. Therefore, there is no demarcation as
to the powers of the organs of the Government. Parliamentary sovereignty is a feature of the
English legal system. Therefore, if the Parliament wishes to delegate such powers to make laws,
it can do so. In UK there is no written Constitution. As such, the limits of such delegated powers
are also not decided. There has to be an enabling provision to demarcate the extent of the
administrator’s legislative or rule-making powers. In the primary legislation the enabling
provisions provide for the permitted content and nature of the resultant delegated legislation.
However, because of the existence of parliamentary sovereignty, in 2006 powers were given to
the Ministers to amend or repeal primary legislations. The Legislative and Regulatory Reform
Act (2006) enables Ministers to enact delegated legislation which may provide for the
amendment or repeal of the primary legislation. 36The House of Lords Select Committee on
Delegated Powers commented that the Act conferred powers to make secondary legislations on a
scale unprecedented in time.37Parliamentary control is exercised over the rule-making powers in
35
5 U.S. Code, Section 706(2)
36
Mark Elliot, ADMINISTRATIVE LAW: TEXTS AND MATERIALS, 4th ed., 2010, p.625
37
Ibid
11
the UK because of the absence of a written Constitution. The legislative control however is done
through the Select Committee on Statutory Instruments which was set up in the House of
Commons in 1944 and has been functioning since then. 38In 1973, following the report of a joint
committee of the House of Lords and the House of Commons, the two Houses formed the Joint
Committee on Statutory Instruments. This committee is concerned with the manner, form and
technique of the exercise of rule-making powers. Unlike such committees, the review and
scrutiny of rule-making powers in US is done by the US Supreme Court. The judiciary in USA
has also been actively making rules in USA. This is not the case in UK.
In regards to publication of such rules the procedure differs. In the United States, provisions for
publication of rules have been made in the Federal Register Act, 1935. It establishes the Federal
Register and provides for daily publication of all documents having general applicability and
legal effect. It expressly provides that no document shall be valid as against any person who has
not had actual knowledge thereof ‘until it has been actually filed for publication’. 39In UK the
Statutory Instruments Act of 1946 provides for publication, printing and sale of statutory
instruments. The Rules Publication Act of 1893 established a system of registration and
publication of statutory rules and orders. Section 2 of the Statutory Instruments Act of 1946
provides that immediately after a statutory rule has been made, it shall be sent to the Queen’s
Printer to be numbered in accordance with the regulations made under the Act. At the end of
each calendar year, the Statutory Office publishes an annual volume containing the text of the
general regulations.
Conclusion
Legislatures rely on rulemaking to add more detailed scientific, economic, or industry expertise
to a policy—fleshing out the broader mandates of authorizing legislation. Law making on the
other hand, is the exclusive domain of the legislature. Lawmaking is the process of crafting
legislation. The process of delegated legislation enables the Government to make a law without
having to wait for a new Act of Parliament to be passed. Delegated legislation is not a new
phenomenon. The legislature has to deal with important matters such as foreign affairs,
economic policies or other developmental works. In the United States, the legal theories of
separation of power and the doctrine of delegate potestas non potest delegari provided for initial
38
SP Sathe, ADMINISTRATIVE LAW, 7th ed., 2004, p.80
39
Ibid, p.61
12
impediments to the delegation of power. Further, the Constitution of the United States is
positioned on the theory of delegation of enumerated powers by the people to the Congress, the
President and the Supreme Court. Since the Congress was itself a delegate, the further re-
delegation of power could not be possible. But today, changes have been brought about in the
process of rule-making in USA. The stand today is that the important functions must be
undertaken by the Congress. Only in case of unimportant functions, the rule-making powers
should be delegated. In UK, powers to issue rules and regulations were more and more
frequently delegated to the executive as the volume of social legislations gradually increased.
The delegation of powers to make rules and laws differ in certain aspects in USA and UK.
Although the need to delegate such powers arose as a contemporary requirement, the powers are
different in both the countries. In USA, strict separation of power exists as a result of the
Constitutional provisions. The presence of a written Constitution in USA makes it harder to
bypass the doctrine. The doctrine of separation of power does not exist in UK. Therefore, there is
no demarcation as to the powers of the organs of the Government. Parliamentary sovereignty is a
feature of the English legal system. Therefore, if the Parliament wishes to delegate such powers
to make laws, it can do so.
However, the power to delegate legislative functions must be scrutinized effectively. The rights
and liberty of the general public should not be abused in the name of delegation. The courts must
be allowed to intervene as and when required so as to safeguard the interests of all. The judiciary
being the protector of the Constitutions must frame guidelines so that the powers do not come in
the way of each other. In the absence of written Constitutional provisions, precedents have to be
set so that the functions of each organ are carried on efficiently without causing confusion to the
general public. Absolute power corrupts absolutely. As such no organ must be allowed to be
arbitrary and exclusive, yet certain limits have to be set to avoid unwarranted encroachment.
13
Bibliography
List of Books
Mark Elliot, ADMINISTRATIVE LAW: TEXTS AND MATERIALS, 4th ed., 2010
Paul Craig, ADMINISTRATIVE LAW, 6th ed., 2011
SP Sathe, ADMINISTRATIVE LAW, 7th ed., 2004
I.P Massey, ADMINISTRATIVE LAW, 9th ed.,2017
John A. Fairlie, “Administrative Legislation”, Michigan Law Review, Vol. 18, No. 3
List of Websites
Marie Huntington, “What Is the Difference Between a Statute & an Administrative Agency
Order?” http://yourbusiness.azcentral.com/difference-between-statute-administrative-agency-
order-13244.html
Harsha Jesawni, “Analysis Of The Concept Of Delegated Legislation”,
https://blog.ipleaders.in/analysis-concept-delegated-legislation/
Aberham Yohannes and Desta G. Michael “The Nature and Definition of Delegated
Legislation”, http://www.abyssinialaw.com/study-on-line/item/309-the-nature-and-definition-of-
delegated-legislation
Prachi Shah, “Separation of Powers in India and USA”,
http://www.legalservicesindia.com/article/article/separation-of-power-in-india-&-usa-483-1.html
www.opsi.gov.uk/si-statistics.htm
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