Submitted by: Urvashi Srivastava | B.A.,LL.B.

(Hons.), 3rd Sem.

PROJEC
T:

DELEGATED LEGISLATION

Acknowledgement
Firstly, I would like to express my profound sense of
gratitude towards the almighty for providing me with
the authentic circumstances which were mandatory for
the completion of my project.

Secondly, I am highly indebted to Dr. Eqbal Hussain

at Faculty of Law, Jamia Millia Islamia University, New
Delhi for providing me with constant encouragement
and guidance throughout the preparation of this
project.

My cardinal thanks are also for my parents, friends

and all teachers of law department in our college who
have always been the source of my inspiration and
motivation without which I would have never been able
to unabridged my project.

Urvashi Srivastava

Contents
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 Law
Introduction
Delegated Legislation
What is delegated legislation
Importance of delegated legislation
Criticism of delegated legislation
Control of delegated legislation
Types of delegated legislation
Statute
Journals or Law Reviews
Bye-Laws
Orders
Judicial Decisions
Bibliography

LAW
Law is a system of rules and guidelines which are enforced through social
institutions to govern behaviour. Laws are made by governments, specifically
by their legislatures. The formation of laws themselves may be influenced by a
constitution (written or unwritten) and the rights encoded therein. The law
shapes politics, economics and society in countless ways and serves as a social
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mediator of relations between people. To implement and enforce the law and
provide services to the public, a government's bureaucracy, the military and
police are vital. While all these organs of the state are creatures created and
bound by law, an independent legal profession and a vibrant civil society inform
and support their progress.
Law provides a rich source of scholarly inquiry into legal history, philosophy,
economic analysis and sociology. Law also raises important and complex issues
concerning equality, fairness, and justice. "In its majestic equality", said the
author Anatole France in 1894, "the law forbids rich and poor alike to sleep
under bridges, beg in the streets and steal loaves of bread." Writing in 350
BC, the Greek philosopher Aristotle declared, "The rule of law is better than
the rule of any individual."

The law is divided into Primary and Secondary Sources of the Law.
Primary Sources of Law: can be divided into two categories:
(i)
(ii)

legislation (statutes, regulations, and orders-in-council) and

case law (decisions of courts and administrative tribunals). Primary
legal resources are the products of official bodies with the authority to
make law. Thus, primary legal resources can affect the legal rights of
citizens.

Secondary Sources of Law: are background resources. Unlike primary

resources, they do not have the power to affect legal rights, and are referred to
instead for their instructive value and for the references they provide to relevant
primary sources of law. Secondary legal resources include textbooks, legal
journals, legal encyclopaedias, and case law digests/summaries. Because of the
broad overview of the law that they provide, secondary legal resources can be
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an excellent starting point for legal research.

INTRODUCTION
Delegated legislation in its various forms is a necessary source of law in a
progressive society. Parliament simply cannot keep up with the need for law
reform demanded by society. The government formed within Parliament has to
fulfill the promised reforms (among other agenda) and there is definite pressure
to see that these reforms are passed within the particular session. The lack of
specialized knowledge among MPs make DL a necessary avenue to ensure
reasonable and effective content of the law. It would be unreasonable to expect
MPs to have specialised knowledge and understanding on a wide variety of
areas. Delegated power is also necessary

to enable a particular minister or

body of people to issue laws to deal with emergencies and unforeseen

contingencies. Passing an Act of Parliament is a particularly lengthy process and
therefore unsuitable to deal with emergencies.
There

are

numerous

concerns

over

the

contribution

of

delegated/

secondary/subordinate legislation as a source of law in the UK. The bulk of

reform via DL is alarming e.g. 100 Acts to 3000 pieces of DL and the concerns
are justified. Delegated legislation (DL) is a generic term for legislation which
is passed by a subordinate body to whom Parliament has delegated law making
powers. At a higher level, DL passed by the Privy Council or cabinet ministers
or ministers are called Orders in Council, Statutory Instruments and Ministerial
Regulations whereas DL issued by Local Councils are called by laws.
Undeniably, these laws are not passed by Members of Parliament as the
peoples legislative representatives but by bodies controlled by the executive
due to their unique position as a power within Parliament and having a degree
of control over Parliament. This threat is compounded by the practice of sub
delegation within the ministry.

DELEGATED LEGISLATION

What is Delegated Legislation?

Delegated legislation, also referred to as secondary legislation, is legislation
made by a person or body other than Parliament. Parliament, through an Act of
Parliament, can permit another person or body to make legislation. An Act of
Parliament creates the framework of a particular law and tends only to contain
an outline of the purpose of the Act. By Parliament giving authority for
legislation to be delegated it enables other persons or bodies to provide more
detail to an Act of Parliament. Parliament thereby, through primary legislation
(i.e. an Act of Parliament), permit others to make law and rules through
delegated legislation. The legislation created by delegated legislation must be
made in accordance with the purposes laid down in the Act. The function of
delegated legislation is it allows the Government to amend a law without having
to wait for a new Act of Parliament to be passed. Further, delegated legislation
can be used to make technical changes to the law, such as altering sanctions
under a given statute. Also, by way of an example, a Local Authority have
power given to them under certain statutes to allow them to make delegated
legislation and to make law which suits their area. Delegated legislation
provides a very important role in the making of law as there is more delegated
legislation enacted 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.

IMPORTANCE OF DELEGATED LEGISLATIONS

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There are several reasons why delegated legislation is important. Firstly, it

avoids overloading the limited Parliamentary timetable as delegated legislation
can be amended and/or made without having to pass an Act through Parliament,
which can be time consuming. Changes can therefore be made to the law
without the need to have a new Act of Parliament and it further avoids
Parliament having to spend a lot of their time on technical matters, such as the
clarification of a specific part of the legislation. Secondly, delegated legislation
allows law to be made by those who have the relevant expert knowledge. By
way of illustration, a local authority can make law in accordance with what their
locality needs as opposed to having one law across the board which may not suit
their particular area. A particular Local Authority can make a law to suit local
needs and that Local Authority will have the knowledge of what is best for the
locality rather than Parliament. Thirdly, delegated legislation can deal with an
emergency situation as it arises without having to wait for an Act to be passed
through Parliament to resolve the particular situation. Finally, delegated
legislation can be used to cover a situation that Parliament had not anticipated at
the time it enacted the piece of 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.
CRITICISM OF DELEGATED LEGISLATIONS
Delegated legislation is not without its criticisms. Firstly, it has been suggested
that by having delegated legislation to make and/or amend laws etc it lacks
democracy as too much delegated legislation is made by unelected people.
Secondly, 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. In addition, delegated
legislation therefore has the potential to be used in ways which Parliament had
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not anticipated when it conferred the power through the Act of Parliament. One
further criticism of delegated legislation is the lack of publicity surrounding it.
When law is made by statutory instrument the public are not normally notified
of it whereas with Acts of Parliament, on the other hand, they are widely
publicised. One reason for the lack of publicity surrounding delegated
legislation is because of the volume of delegated legislation made and this
results in the public not being informed of the changes to law. There has also
been concern expressed that too much law is made through delegated
legislation.

CONTROL OF DELEGATED LEGISLATIONS

There are controls in place in relation to delegated legislation to ensure that
those who make law under it are doing it in an appropriate manner. Parliament
exercises control over delegated legislation in that when the Act of Parliament is
created, Parliament stipulate in the Act of Parliament the parameters with regard
to delegated legislation. Further, there are scrutiny committees which consider
delegated legislation within a Bill as it passes through the Houses of Parliament.
Delegated legislation is also subject to control through the Court. A piece of
delegated legislation can be deemed by the Court to be ultra vires. This means
that the body that created the delegated legislation acted beyond the powers
conferred to them by statute. An example where a body would have acted ultra
vires would be if the delegated legislation goes beyond what Parliament
intended or where the procedural rules to be followed in relation to the
delegated legislation have not been followed. Any Court action which is brought
challenging delegated legislation is done through the means of Judicial Review.
If the Court finds that a piece of delegated legislation is ultra vires then that
legislation can be declared void.
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TYPES OF DELEGATED LEGISLATIONS

The following are the three main types of delegated legislation: By Laws: They are made by Local Authorities to deal with matters within
their particular locality.
Statutory Instruments: These are made by Government Ministers and they
insert the detail to Acts of Parliament. Statutory Instruments make up the
majority of delegated legislation that is made. Around 3,000 Statutory
Instruments are issued each year
Orders in Council: They are made by the Queen on the advice of the
Government and are usually made when Parliament is not sitting. They can be
used by the Government in emergency situations.

STATUTE
A statute is a formal written enactment of a legislative authority that governs a
state, city, or county. Typically, statutes command or prohibit something, or
declare policy. The word is often used to distinguish law made by legislative
bodies from case law, decided by courts, and regulations issued by government
agencies. Statutes are sometimes referred to as legislation or "black letter law."
As a source of law, statutes are considered primary authority (as opposed to
secondary authority).
Ideally all statutes must be in harmony with the fundamental law of the land
(constitutional).

This word is used in contradistinction to the common law. Statutes acquire their
force from the time of their passage, however unless otherwise provided.
Statutes are of several kinds; namely,
Public or private.
Declaratory or remedial.
Temporary or perpetual.
A temporary statute is one which is limited in its duration at the time of its
enactment. It continues in force until the time of its limitation has expired,
unless sooner repealed. A perpetual statute is one for the continuance of which
there is no limited time, although it may not be expressly declared to be so. If,
however, a statute which did not itself contain any limitation is to be governed
by another which is temporary only, the former will also be temporary and
dependent upon the existence of the latter.
Before a statute becomes law in some countries, it must be agreed upon by the
highest executive in the government, and finally published as part of a code. In
many countries, statutes are organized in topical arrangements (or "codified")
within publications called codes, such as the United States Code. In many
nations statutory law is distinguished from and subordinate to constitutional
law.

JOURNALS OR LAW REVIEWS

Law review or journal articles are another great secondary source for legal
research, valuable for the depth in which they analyze and critique legal topics,
as well as their extensive references to other sources, including primary sources.
Law reviews are scholarly publications, usually edited by law students in
conjunction with faculty members. They contain both lengthy articles and
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shorter essays by professors and lawyers, as well as comments, notes, or

developments in the law written by students. Law review articles often focus on
new or emerging areas of law and they can offer more critical commentary than
a legal encyclopedia or ALR entry.
Some law reviews are dedicated to a particular topic, such as gender and the law
or environmental law, and will include in their contents the proceedings of a
wide range of panels and symposia on timely legal issues.
BYE-LAWS

By-law (sometimes also spelled bylaw, by law or byelaw) can refer to a law of
local or limited application passed under the authority of a higher law
specifying what things may be regulated by the by-law. It can also refer to the
internal rules of a company or organization.
In the context of local laws, "by-law" is more frequently used in this context
in Canada, the United Kingdom and some Commonwealth countries, whereas in
the United States, the words code, ordinance or regulation are more frequent.
Accordingly, a bylaw enforcement officer is the Canadian equivalent of the
American Code Enforcement Officer or Municipal Regulations Enforcement
Officer.

ORDERS

A court order (a type of court ruling) is an official proclamation by

10 the legal relationships between the
a judge (or panel of judges) that defines

parties to a hearing, a trial, an appeal or other court proceedings. Such ruling

requires or authorizes the carrying out of certain steps by one or more parties to
a case. A court order must be signed by a judge; some jurisdiction may require it
to benotarized.
The content and provisions of a court order depend on the type of proceeding,
the phase of the proceedings in which they are issued, and the procedural and
evidentiary rules that govern the proceedings.
An order can be as simple as setting a date for trial or as complex as
restructuring contractual relationships by and between many corporations in a
multi-jurisdictional dispute. It may be a final order (one that concludes the court
action), or an interim order (one during the action). Most orders are written, and
are signed by the judge. Some orders, however, are spoken orally by the judge
in open court, and are only reduced to writing in the transcript of the
proceedings.

JUDICIAL DECISIONS
Judicial decision/judgment is the (law) determined by a court of competent
jurisdiction on matters submitted to it.
These judicial decisions are later on followed in many legal proceedings and are
served

as

legal

material.

In common

law legal

systems,

a precedent or authority is a principle or rule established in a previous legal

case that is either binding on or persuasive for a court or other tribunal when
deciding subsequent cases with similar issues or facts. The general principle
in common law legal systems is that similar cases should be decided so as to
give similar and predictable outcomes, and the principle of precedent is the
mechanism by which that goal is attained. Black's Law Dictionary defines
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"precedent" as a "rule of law established for the first time by a court for a
particular type of case and thereafter referred to in deciding similar
cases."[1] common law precedent is a third kind of law, on equal footing
with statutory law (statutes and codes enacted by legislative bodies),
andregulatory law (regulations promulgated by executive branch agencies).
Stare decisis (Anglo-Latin pronunciation: /stridsass) is a legal principle by
which judges are obliged to respect the precedent established by prior decisions.
The words originate from the phrasing of the principle in the Latin maxim Stare
decisiset non quietamovere: "to stand by decisions and not disturb the
undisturbed."[2] In a legal context, this is understood to mean that courts should
generally abide by precedent and not disturb settled matters.[2]

Case law is the set of existing rulings which made new interpretations of law
and, therefore, can be cited as precedent. In most countries, including most
European countries, the term is applied to any set of rulings on law which is
guided by previous rulings, for example, previous decisions of a government
agency--that is, precedential case law can arise from either a judicial ruling or a
ruling of an adjudication within an executive branch agency. Trials and hearings
that do not result in written decisions of a court of record do not create
precedent for future court decisions.

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Bibliography
1) TEXTBOOK ON LEGAL METHOD,LEGAL SYSTEM RESEARCH:
PROF. TUSHAR K. SAHA
2) LEARNING THE LAW: GLANVILLE WILLIAMS

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