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Friday, December 21, 2012

What is delegated legislation?


It is very difficult to give any precise definition of the expression ‘delegated legislation’ and so is the scope of it.
Justice Mukherjea said- Delegated legislation is an expression which covers multitude confusion. It is an excuse for the legislators a shield for the administration and a provocation to the constitutional jurists.
In Halsbury’s Laws of England it has been said that- when an instrument of a legislative nature is made by an authority in exercise of power delegated or conferred by the legislature, it is called subordinate legislation.
Simply, when the function of legislation is entrusted to organs other than the legislature by the legislature itself, the legislation made by such organs is called delegated legislation.
Delegated legislation is recognized by article 65(1) of the Bangladesh Constitution- “Nothing shall prevent parliament from delegating to any person or authority, by Act of parliament, power to make orders, rules, regulations, by-laws or other instruments having legislative effect”.
In conclusion it can be said that, delegated legislation refers to all law making which takes place outside the legislature. Delegated legislation may also be expressed as rules, regulations, notification, bye-law, scheme and direction. These terminologies are confusing because different words are used for the same thing and same words are used for different things.
1. Rule: The term ‘rule’ is defined in the General Clauses Act, 1897 as a rule made in exercise of power conferred by any enactment. It also includes a regulation made as rule under any enactment. These rules may be applicable to a particular individual or to the general public.
2. Regulation: This term is not confined to delegated legislation only. It means an instrument by which decision, orders and acts of the government are made known to the public. But in the sphere of delegated legislation, the term relates to the situation where power is given to fix the date for the enforcement of an Act or to grant exemption from the Act or to fix prices etc.
3. Order: This term is used to cover various forms of legislative and quasi-judicial decisions. Orders may be specific or general. The specific orders refer to administrative actions while the general order refers to administrative rule-making.

What is the subject matter of administrative law?


Administrative law is the most growing and complex subject. Because it is basically a judge made law and the judges are changing their portion very often. This makes an understanding on the subject very much difficult. Further more, recent economic has added new dimension to the subject. However, Administrative law deals with-
(i)                 Structure, power and functions of the organs of administration.
(ii)               Limits of their powers.
(iii)             Methods and procedures followed by them in exercising their powers and functions.
(iv)             Ways by which their powers are kept within legal limits.
(v)               Legal remedies against the organs which a person’s rights is infringed.

What is the subject matter of administrative law?


Administrative law is the most growing and complex subject. Because it is basically a judge made law and the judges are changing their portion very often. This makes an understanding on the subject very much difficult. Further more, recent economic has added new dimension to the subject. However, Administrative law deals with-
(i)                 Structure, power and functions of the organs of administration.
(ii)               Limits of their powers.
(iii)             Methods and procedures followed by them in exercising their powers and functions.
(iv)             Ways by which their powers are kept within legal limits.
(v)               Legal remedies against the organs which a person’s rights is infringed.


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What are the reasons for growth of delegated legislation?


Many factors are responsible for the rapid growth of delegated legislation in every modern democratic state. The traditional theory ‘laissez-faire’ has been given up by every state and the old ‘police state’ has now become a ‘welfare state’. Because this radical change I the philosophy as to the role to be played by the state, its functions have increased. Consequently, delegated legislation has become essential and inventible. As American lawyer and statesman Root remarks- “The old doctrine of prohibiting the delegation of legislative powers has virtually retired from the field and given up the fight”.
According to the committee on ministers’ power the following factors are responsible for the rapid growth of delegated legislation.
(a) Pressure upon parliamentary time: The horizons of state activities are expanding. The bulk of legislation is so great. It is not possible for the legislature to devote sufficient time to discuss all the matters in detail. Therefore, legislature formulates the general policy – the skeleton and empowers the executive to fill in the details – thus giving flesh and blood to the skeleton so that it may live- by issuing necessary rules, regulation, bye-laws etc.
In the words of Sir Cecil Carr, ‘delegated legislation is a growing child called upon to relieve the parent of the strain of overwork and capable of attending to minor matters, while the parent manages the main business. The Committee on Ministers’ powers has rightly observed: “The truth is, that if parliament were not willing to delegate law making power, parliament would be unable to pass the kind and quality and legislation which modern public opinion requires.”
(b) Technicality: Sometimes, subject matter of legislation is technical in nature. So, assistance of experts is required. Members of parliament may be the best politicians but they are not expert to deal with highly technical matters. These matters are required to be handled by experts. Here, the legislative power may be conferred on experts to deal with the technical problems. i.e. gas, atomic energy, drugs, electricity etc.
(c) Flexibility: Parliament cannot foresee all the contingencies while passing on enactment. To satisfy these demands of unforeseen situation some provisions are required to be made. A legislative amendment is a slow and cumbersome process. But by the device of delegated legislation the executive can meet the situation expeditiously, e.g. bank rate, police regulations, export and import, foreign exchange etc. Therefore, in a number of statutes a ‘removal of difficulty’ clause has been added empowering the administration to overcome such difficulties by exercising delegated power. This Henry VIII clause confers very wide powers

Emergence of administrative law as a separate branch of law


Administrative law is a by-product of intensive form of government. During the last century, the role of the government has changed in almost every century of the world, from laissez – faire to paternalism and from paternalism to maternalism. Today the expectation from the government is not only protect its people from external aggression and internal disturbance but also to take of its citizens from the cradle to the grave. Therefore, the development of modern process and the administrative law has become the cornerstone of modern political philosophy.

            Today there is a demand by the people that government must solve their problem rather than merely define their rights. It is felt that the right of equality in the American Constitution will be sterile right if the black in the first to lose his job and the last to be re-employed. In the same manner, the equality clause in Bangladesh Constitution would become meaningless if the government comes forward to actively help the weaker section of the society to bring about equality in fact. This implies the growth of administrative law and process.

            In the same manner today, people recognize all problems as solvable rather than political controversies. Before the industrial revolution in England, during the heydays of laissez-faire doctrine, the conflict between the employer-employee was considered a political controversy and the government would do well by

What is the distinction between quasi-judicial and judicial functions of administrative law?

The distinctions between quasi-judicial and judicial function of administrative law are given below with some points.

(i) Trappings: A quasi-judicial authority has some of the trappings of a court, but not all of them, yet there is an obligation to act judicially.

(ii) Argument: Argument is an essential characteristic of a judicial function, but this may not be true of a quasi-judicial function.

(iii) Rules of evidence: The court is bound by rules of evidence and procedure while quasi-judicial authority is not.

(iv) Precedent: While a court is bound by precedents, a quasi-judicial authority is not.

(v) A court can not be a judge in its own cause, while an administrative authority vested with quasi-judicial powers may be a party to the controversy but can still decide it.

What is the distinction between legislative and judicial functions of administrative law?


The distinctions between legislative and judicial functions of administrative law are as follows:-
In Prentis Vs. Atlantic Coast Line Co. (1908) 211 US 210, Justice Holmes points out that the distinction between legislative and judicial functions in the following words-
“A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or same part of those subject to its power”

So, according to him the main aspect is the element of time. A rule (legislative function) prescribes future pattern of conduct and creates new rights and liabilities, whereas a decision (judicial function) determines rights and liabilities on the basis of present or past facts and declare the pre-existing rights and liabilities.

In the words of Green, “The legislative function then is general and relates to the future, whereas the judicial function is specific, final and ordinarily relates to the past”.

Again, element of applicability should be taken into consideration.

Professor Dickinson says- Legislation affects the rights of individuals in the abstract and must be applied in a further proceeding before the legal position of any particular individual will be definitely touched by it, while adjudication operates upon individuals in their individual capacity.  

Mr. Green again says, “Perhaps it would be better to say that it is a legislative function to make all substantive law and a judicial function finally to determine constitutional jurisdiction and the application of substantive law to specific facts.”

These tests may create some problems in certain cases. The problem is to be solved by considering the function and determining its character in each case.

The rules of natural justice don’t run in case of legislation, but in case of judicial function following principles of natural justice is a must.

Again, the requirement of publication and consultation should be followed in case of legislative function but in respect of judicial function this is not so.

Lastly, duty to give reason applies to judicial function but not legislative orders.

what is the distinction between constitutional law and administrative law?


Constitutional law and administrative law both are concerned with functions of government, both are a part of public law in the modern state and the sources of the both are the same. Yet there is a distinction between the two. The administrative law is but an adjunct of the constitutional law. To the early English writers on administrative law there was no difference between administrative law and constitutional law. Therefore, Keith observed:
“It is logically impossible to distinguish administrative from constitutional law and all attempts to do so are artificial”.

Actually the distinction between the two is one of degree, convenience and custom rather than that of logic and principle. However, according to Holland, “Constitutional law describes the various organs of the government at rest, while administrative law describes them in motion”

Therefore, according to this view, the structure of the legislature and executive comes within the purview of the constitutional law but there functioning comes within the sphere of administrative law. But Maitland does not agree with this classification because in that case powers and prerogatives of the crown would be relegated to the arena of administrative law.

According to Jennings- administrative law deals with the organization, functions, powers and duties of administrative authorities while constitutional law deals with the general principles relating to the organization and powers of the various organs of the state and their mutual relationship of these organs with the individuals. In other words, constitutional law deals with fundamentals while administrative law deals with details.

It may also be pointed out that constitutional law deals with the rights and administrative law lays emphasis on public need. However, the dividing line between the constitutional law and administrative law is a matter of convenience because every student of administrative law has to study some constitutional law.

In countries which have written constitutions the difference between constitutional law and administrative law is not so blurred as in England. In such countries the source of constitutional law is the constitution while the source of administrative law may be statutes, statutory instruments, precedents and custom.

Whatever may be the argument and counter argument, the fact today that administrative law is recognized as a separate independent branch of legal discipline though at times the discipline of constitutional law and administrative law may overlap. The correct position seems to be that if one draws two circles of administrative law and a constitutional law, a certain place they may overlap and this area may be termed as ‘watershed’ in administrative law. This formulation does not differentiate between administrative law and constitutional law. It lays entire emphasis on the organization, power and duties to the exclusion of the manner of their exercise. A student of administrative law is not concerned with how a minister is appointed but only with how a minister discharges his functions in relation to an individual or a group. How the minister of housing and rehabilitation is appointed is not the concern of administrative law but when this minister approves a scheme of new township which involves the acquisition of houses and lands of persons living in that area questions of administrative law arise. Jennings’ formulation also leaves many aspects of administrative law untouched, especially the control mechanism.

Professor Robson observed that constitutional law deals with individual right and administrative law deals with public need.