Oversight of delegated legislation by courts
Oversight of Delegated Legislation by Courts
What is Delegated Legislation?
Delegated legislation (also called subordinate or secondary legislation) refers to laws or regulations made by an authority (often an administrative agency or minister) under powers granted by a primary legislation (statute) enacted by the legislature. Examples include rules, regulations, by-laws, orders, notifications, and guidelines.
Why is Oversight Needed?
Parliament delegates law-making to agencies for technical details or to expedite governance.
Risk of Abuse: Delegated legislation may exceed or misuse delegated powers.
Legal Safeguard: Courts act as guardians of legality, ensuring that delegated legislation is valid and respects the limits imposed by the parent Act and the Constitution.
Grounds for Judicial Review of Delegated Legislation
Ultra Vires (Beyond Powers): If the delegated legislation exceeds the scope of authority granted by the parent Act.
Procedural Impropriety: If required procedures for making the legislation are not followed.
Unreasonableness or Irrationality: If the legislation is arbitrary or unreasonable (e.g., Wednesbury unreasonableness).
Conflict with Primary Legislation or Constitution: If the delegated legislation contradicts the parent Act or violates constitutional provisions.
Lack of Publication or Transparency: Failure to notify or publish the delegated legislation as required.
Key Case Law on Judicial Oversight of Delegated Legislation
1. R. v. Secretary of State for the Home Department, ex parte Fire Brigades Union (1995) – UK
Facts: The Home Secretary promised to introduce a tariff system of compensation for injuries but later abandoned it in favor of a statutory scheme.
Issue: Whether the Home Secretary’s decision not to implement the tariff system was lawful.
Judgment: The House of Lords held that delegated powers must be exercised in accordance with the statutory scheme and expectations created. Failure to implement the delegated legislation was unlawful.
Importance: Shows courts can ensure delegated legislation is not arbitrarily disregarded by executive.
2. Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan (1964) – India
Facts: A municipal corporation passed a by-law to levy tax, but it exceeded the powers granted by the parent Act.
Judgment: The Supreme Court held the by-law invalid as ultra vires.
Importance: Reinforces the principle that delegated legislation must strictly adhere to the limits set by the enabling Act.
3. Agricultural, Horticultural & Allied Workers Union v. Minister of Labour (1948) – South Africa
Facts: Regulations were issued under delegated legislation but failed to comply with procedural requirements.
Judgment: The court invalidated the regulations on procedural grounds.
Importance: Emphasizes that failure to follow prescribed procedures for making delegated legislation can render it invalid.
4. Wednesbury Corporation Case – Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1948) – UK
Facts: The local authority imposed a condition restricting children from attending cinema on Sundays.
Issue: Whether this was an unreasonable exercise of delegated power.
Judgment: The court held that the condition was lawful as it was not unreasonable in the Wednesbury sense (so irrational that no reasonable authority would impose it).
Importance: Established the test of “Wednesbury unreasonableness” as a standard to review delegated legislation for rationality.
5. R. (on the application of Miller) v. Secretary of State for Exiting the European Union (2017) – UK
Facts: The UK Government sought to trigger Article 50 via executive action without parliamentary approval.
Issue: Whether the government could use delegated powers to effect major constitutional changes.
Judgment: The Supreme Court held that delegated legislation cannot be used to change fundamental rights or constitutional arrangements without explicit parliamentary authorization.
Importance: Limits the scope of delegated legislation, especially concerning constitutional matters.
6. Shiv Kumar v. Union of India (2011) – India
Facts: Challenge to rules framed under the Motor Vehicles Act.
Judgment: The court invalidated certain rules as ultra vires because they were inconsistent with the parent Act.
Importance: Demonstrates judicial power to strike down delegated legislation inconsistent with the enabling statute.
Summary
Courts serve as watchdogs ensuring delegated legislation stays within legal bounds.
The doctrine of ultra vires is central: delegated legislation must conform to the scope and purpose of the parent Act.
Procedural requirements must be followed in the creation of delegated legislation.
Courts apply the Wednesbury test to ensure rationality.
Delegated legislation cannot override constitutional principles or fundamental rights.
Judicial oversight maintains the balance between necessary delegation for efficient governance and protection of individual rights and legislative supremacy.
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