The nature and purpose of delegated legislation

Abstract

The aim of the dissertation is to explain and discuss critically the various principles and purposes of delegated legislation. It starts by identifying the history and foundations of delegated legislation in the introduction. Its inception as a means of legislation has led to the emergence of more forms of delegated legislation throughout the years making its nature and purpose worth examining. Printed and published works of law writers, in particular authoritative writers in the field of administrative law, as well as various legislative acts and case law which shed light on the evolution of delegated legislation, have been consulted in the research and writing of the dissertation. A thematic approach has been adopted in the main chapterisation of the dissertation. The sub-sections are given titles according to the themes relevant to the subject matter. Chapter 1 of the dissertation delves into the nature and the various types of delegated legislation with the aim of creating an understanding of the various types of delegated legislation which may exist. The significance of the delegation will depend on the extent and terms to which real power has been transferred. The dissertation analysis when delegated legislation comes into play and its major purpose. The answer to this question depends entirely on the interpretation of the statute which confers the discretion. In practice the law demands that delegation must be authorised by statute, either expressly or impliedly. Nonetheless it will be shown how statutory powers to delegate functions, even if expressed in wide general terms, will not necessarily extend to everything. The dissertation will go on to illustrate in Chapter 2 the scope and justification of delegated legislation, as well as how delegated legislation is administered. The dissertation aims to explore how decisions are made about what goes into primary and what goes into secondary legislation and who makes them, as well as which parliamentary scrutiny procedures should then apply to the delegated legislation and why, as well as what, formal and informal influence Parliament is able to exercise in this decision making process. Central to the sense of discretion in delegated legislation is the idea that each defined area of power must reflect upon its purpose, and then settle upon the policies and strategies for achieving them. There may be discretion “in identifying and interpreting purposes and there may also be discretion as to the policies, standards and procedures to be followed in achieving these purposes”. In addition, the principles of natural justice are also dealt with in this Chapter as through these principles together with the use of appropriate procedures the substance of what public authorities can do are regulated. Chapter 3 of the dissertation will identify the main criticisms and limitations of delegated legislation. Public authorities must be reasonable and act in good faith and upon lawful and relevant grounds of public interest. The subject matter has nonetheless attracted its fair share of criticism and has also been dubbed as ‘a necessary evil’. In this light the dissertation will raise questions of illegality and irrationality. It is required that statutory powers are to be exercised reasonably, in good faith and on correct grounds. Procedural impropriety will be treated and reference will be made where the proper procedure has not been followed when making regulations. Unauthorised acts are condemned simply for the reason that they are not permitted. There have been various situations where public authorities have been accused of acting on improper motives or on irrelevant consideration so that it actions were deemed to be ultra vires and thereafter void. Case law of discrimination, inconsistency and unfair action will also be analysed as these also amount to abuse of discretion. Moreover in this Chapter, in the part dealing with the grounds of judicial review, it will be underlined how “unfettered discretion is wholly inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good”. Here the dissertation will also touch upon the doctrine of excessive delegation of discretion and this is also supported by local and foreign case law. Judicial review and the power to vary acts of Parliament will also be treated in the dissertation. Wade and Forsyth in their book “Administrative Law” have held that “powers to vary Acts of Parliament particularly those which go beyond incidental and consequential changes, place exceptional power in the hand of ministers and also raise constitutional issues over the supremacy of parliament”. Other grounds of judicial review are unreasonableness or irrationality, but it will be seen how the courts have applied them with great caution to delegated legislation, particularly when it is subject to parliamentary scrutiny and control. The dissertation will hence treat landmark decisions of judicial control over delegated legislation.