Danger of Delegated Legislation
Prof, Keith has, in great detail, described the dangers of the del-egated legislation. Some important of them are :
(1) Legislation may be passed in too skeleton a form and wide pow-ers of action to make new laws and to impose tax may be given.
(2) Parliament gets inadequate time to scrutinise the regulations.
(3) Some of the regulations attempt to deprive the subjects of re-course to the law courts for protection.
(4) The procedural advantages of the Crown against the subject (Crown Proceedings Act, 1947 has improved the position to some extent but renders it difficult for him to obtain redress for illegal actions done under the authority of delegated legislation.
Keeton has summarized the darken under two heads :
(1) Excessive power may be delegated.
(2) The Government Departments may assume a wider legislative competence than what the Parliament has granted.
Safeguards against the Delegated Legislation
The following safeguards have been generally suggested by jurists against delegated legislation :
(1) Parliamentary Control : In England when a bill that provides for the delegation of power is before the house, the house may modify amend or refuse altogether the powers proposed to be delegated in the bill the government have set up a select committee on statutory instrument since 1944 to examine every instrument laid down before the House of Com-mons with a view to determine whether the special attention of the House should be drawn to it on certain specified grounds. An Act was also passed in 1946, i.e., ‘Statutory Instrument act’, which provides that a copy of the Instrument shall be laid before he House before it comes into operation. Apart from these, there are other methods also through which the Parliament can exercise control. It s submitted that in practice these safe-guards have not proved much effective, and thus, substantial control is not exercised.
(2) Judicial Control.: To some extent judicial control is also exercised over the delegated legislation. In England, as the Parliament is supreme, it can delegate any amount of power. Therefore, the judicial control is confined within very narrow limits. The courts in these natters interfere under the doctrine of ultra vires, or under their writ jurisdiction. The main ground on which this interference is made is that he authority to whom the power is delegated has exceeded it. The pounds on which courts declare a bye-law ultra vires are that it is inreasonabte, or repugnant to the fundamental laws of the country, or is vague, or it has not been made and published in accordance with the rules prescribed for the same. But in modern times, there is a tendency o oust the jurisdiction of the courts and this is expressly provided in the statute which delegates the power. Thus the courts too have not remained very much effective in controlling del-egated legislation.
(3) Publicity—It is necessary that due publicity should be given o the delegated legislation, because without such publicity it may be de-clared ultra vires.
Other Controls and Safeguards.—
Certain other safeguards which have been suggested, and to some extent, have been adopted in practice also are the delegation should be made only to trustworthy bodies; expert advice should be taken and the persons whose interests professional organisations etc. to he affected by the concerned delegated legislation should be consulted before making any rule regarding them. Authors, lawyers and judges have often vigorously attacked delegated legislation in their writings, opinions and judgments ‘respectively which have, to some extent, discouraged delegated legislation. Hewart’s ‘New Despo-tism’, or Lord Atkin’s judgment in Liversidge v. Anderson are the in-stances of such checks.