Oxford University Press Oxford Journal of Legal Studies

Delegated Legislation: United States and United Kingdom
Author(s): Michael Asimow

Source: Oxford Journal of Legal Studies, Vol. 3, No. 2 (Summer, 1983), pp. 253-276
Published by: Oxford University Press
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DELEGATED LEGISLATION:
UNITED STATES AND UNITED KINGDOM
MICHAEL ASIMOW*
A comparison of delegated legislation' in Britain and America revea

difference. In the USA, the substance of regulations and the proce
they are made present issues which generate enormous controversy
judicial, and academic circles. In Britain, nearly everyone seems
(and hardly anyone seems interested in) procedural and substan
delegated legislation. This paper speculates about why two deve
should differ so sharply in their attitude toward an essential techni
government.
words 'rule' and 'regulation' are synonymous and these terms c
delegated legislation but also other pronouncements which
applicability and future effect but which lack the force of law.2 T
promulgating them is called 'rulemaking'.3 In Britain, contemporar
differentiates between 'rules' which are procedural and 'regulat
substantive. Neither term refers to pronouncements of general ap
as circulars, guidelines, or extra-statutory concessions.4 'Statutory
are the mechanism for making most delegated legislation.5 This ar
mainly substantive delegated legislation but, in American fashion,
terms 'rule' and 'regulation' interchangeably. For the most part, it
American experience at the federal rather than the state leve
developments in many states parallel the federal experience.
*Professor of Law, University of California, Los Angeles Law School. My late

Hagman, provided great assistance in the preparation of this article. I would also
Institute of Advanced Legal Studies, London, for the use of its facilities.
I 'Primary legislation' (statutes) frequently empower government officials to fill
'delegated legislation', sometimes called 'subordinate legislation', 'bye-laws', or '
primary legislation, delegated legislation usually has general applicability, futur
force of law.
2 Such pronouncements are often referred to herein as 'non-delegated subordinate
3 Americans often refer to delegated legislation as 'legislative' or 'substantive
defined by the Administrative Procedure Act as a statement by government (ot
or courts) of general applicability and future effect designed to implement, interp
law or policy. 'Rulemaking' is agency process for formulating, amending or re
United States Code Annotated ss 551(4) and (5). The Administrative Pro
hereinafter be referred to as the APA and will omit the reference to USCA.
4 See H. W. R. Wade, Administrative Law (4th ed 1977) 704-05, (hereinafter cited as 'Wade');
C. K. Allen, Law and Orders (1965) Chap 4, (hereinafter cited as 'Allen').
5 Delegated legislation can also be expressed in Orders in Council, bye-laws, and directions, among
others. Wade 50, 704-05; Griffith and Street, Principles of Administrative Law (1963) 32-37,
(hereinafter cited as 'Griffith & Street').
253
Oxford Journal of Legal Studies Vol. 3, No. 2
254 DELEGATED LEGISLATION
I. RULEMAKING IN THE USA
This section is intended to provide the British reader

contemporary American law and practice concerning rulem
convey a sense of the political turmoil which swirls around th
(a) An overview of rules and rulemaking in American governm

It often seems that the American reaction to a problem is to
regulate the private sector; such 'regulation' usually entails th
government agency6 of 'regulations' to fill in gaps in the regula
Consider these few examples of federal regulations:
I. Air and water pollution rules furnish detailed prescription
emissions of plants in most industries.
2. Worker safety rules spell out requirements, often very co
detail.
3. Cable television rules, until recently, determined the terms of the competitive
struggle between free over-the-air television, pay television, and cable.
4. Trade regulation rules restructure the marketing and competitive practices
of entire industries.
5. Automobile safety rules establish precise requirements for seatbelts,
bumpers, petrol tanks, etc.
Government by expert regulators became fashionable during the New Deal of
the 1930s, when Congress created new agencies to regulate specific sectors of the
economy, such as corporate securities, labour relations, and various forms of
transportation and communication. The regulatory technique was called upon
anew when concerns about the dangers of technology, environmental degradation,
and consumer protection were translated into law during the I960s and 1970S.
Faced with complex and intractable problems, legislators created new agencies,
commanded them to achieve specific results by specific dates, and armed them
with a combination of regulatory, adjudicatory, and enforcement powers.
The new agencies, along with re-invigorated older agencies, generated a huge
number of highly controversial, costly, and complex regulations. This regulatory
deluge attracted attention to the subject in legal and economic literature as well as
in the popular press.7 A vast number of court decisions have focused on
delineation of procedural requirements for making rules and clarification of the
scope of the reviewing court's power to review the rules. Rulemaking has claimed
a great deal of legislative and executive attention at federal and state levels and the
Administrative Conference of the United States (analogous to the British Council
on Tribunals) has devoted substantial resources to the subject. It is often claimed
that agencies impose burdensome requirements without adequate consideration of
6 An 'agency', in American parlance, is a unit of government (other than Congress or the courts).
APA s 55I(I). Most agencies form part of the executive branch of government and are thus
equivalent to a British department, but several are independent of executive control (i.e. the
President cannot remove the members without cause).
7 One bi-monthly journal, aptly called Regulation, is devoted exclusively to the subject.
MICHAEL ASIMOW 255
efficiency or cost, that they suffer fr

industries they regulate, or that publ
insufficient or a meaningless formality
The early 1980s have seen a sharp
parties espouse deregulation, and sign
railroads, radio and television, stock b
of professionals, and financial institut
rulemaking procedures and judicial rev
reaction against regulation and identi
deregulation.
(b) Rulemaking procedure

The enactment of the Administrative Procedure Act (APA) in 1946 was the
landmark event in the history of American administrative law. This statute struck
a compromise between advocates and opponents of procedural formality, one
which has proved resilient and enduring. The APA grew out of a study in 1941 by
the Attorney-General's Committee on Administrative Procedure9 (in much the
same way that the Tribunals and Inquiries Act 1958 was inspired by the report of
the Franks Committee). Building upon existing practices, the Attorney-General's
Committee recommended an informal but mandatory rulemaking system which
ultimately became Section 4 of the APA.i' It seems that Congress contemplated
an undemanding system whereby an agency could supplement its own
investigation, receive public input, sketch the purpose of a rule, and publish it
before the effective date."
More specifically, the APA requires an agency to give general notice of the
terms or substance of a proposed rule.12 Interested persons are invited to submit
written data, views, or arguments, with or without an oral presentation. The rule
must incorporate a 'concise general statement' of its basis and purpose and be
published not less than thirty days prior to its effective date.'" No procedures are
required to adopt non-delegated subordinate legislation'4 or procedural rules;
8 See Ackerman and Hassler, 'Beyond the New Deal: Coal and the Clean Air Act' 89 Yale LJ 1466
(i98o), a brilliant case study of a rule suffering most of these defects. The article provides a
stimulating intellectual history of the subject. For a sophisticated account of government failure to
protect collective interests, see Stewart, 'The Reformation of American Administrative Law' 88
Harv L Rev 1667, 1681-8 (i975).
9 'Administrative Procedure in Government Agencies', S Doc 8, 77th Cong Ist Sess (1941).
to Report, supra n 9, 97-115.
iI See APA Legislative History, S Doc 248, 79th Cong 2d Sess (1946) 17-21, 304, 358-9-
12 APA s 553(b). Notice is published in the Federal Register, a daily document with a large national
circulation, and is generally mailed to anyone whom the agency knows to be interested in the
subject.
13 APA s 553(c), (d). In a few instances, a statute other than the APA requires an on-the-record
hearing prior to adoption of a rule. In such cases, the APA sets forth an abbreviated trial-type
procedure which is referred to as 'formal rulemaking'. APA ss 553(c), 557(b).
14 This term is defined in n 2, supra.
moreover, the undemanding steps required to adopt

omitted if they would be impracticable, unnecessary, o
interest." However, non-delegated subordinate legislatio
must be published in the Federal Register after it is ado
From these rather sparse raw materials, the courts ha
and exacting requirements. Most regulatory cases h
United States Court of Appeals for the District of Colu
more administrative rules and orders than any other f
judges of this bench, particularly J Skelly Wright, Dav
Leventhal, and Carl McGowan, have profoundly re
procedures and have redefined the role of reviewing co
flesh on the bare bones of the APA. For example, they
of proposed rulemaking to fairly present the substa
addition, the notice of proposed rulemaking mu
methodology and supporting studies in order to allow th
criticize this data.'" If additional factual materials or st
the rulemaking process, these must be disclosed also.20 T
purpose of the final rule must explain the agency's
respond to material comments by outsiders and explain
rejected.2' The various exceptions to the notice-and-com
narrowly construed.22
Some decisions imposed additional procedural steps to
and assure adequate ventilation of the subject matter.23
I5 APA s 553(b)(A), (B), (d)(I), (2), (3). In addition, APA s 553 is

foreign affairs function or a matter relating to agency managem
property, loans, grants, benefits, or contracts. APA s 553(a).
16 APA s 553(a)(i)(D). Non-delegated subordinate legislation of par
final opinions in adjudication and administrative staff manuals) m
inspection and copying and indexed. APA s 552(a)(2).
17 Their role reminds an observer of that played by Lord Denning
of British administrative law. See Denning, The Discipline of Law
clearly acknowledged in Judge Wright's review of Lord Denning
Logic of Experience: Reflections on Denning, Devlin, and Judi
Context' 33 Stan L Rev 179 (1980).
I8 See W/agner Electric Corp v Volpe 466 F 2d IoI3 (3rd Cir 1972);
of Rulemaking under the Federal Administrative Procedure A
Davis, Administrative Law Treatise (1978) s 6.25 (hereinafter refe
x9United
20 Portland Cement
States v Nova Assoc v Ruckelshaus
Scotia Food 486568
Products Corp F 2d 375
F 2d 240(DC
(2d Cir 1973), cert den 417 US 921 (1974).
Cir 1977).
21 Portland Cement Assoc v Ruckelshaus, supra n 19; National Lime Assn v EPA 627 F 2d 416
(DC Cir I98o).
22 See, e.g. Chamber of Commerce of US v OSIHA 636 F 2d 464 (DC Cir 198o) (interpretive rules
and policy statements); United States Steel Corp v EPA 595 F 2d 207 (5th Cir 1979) (good cause
exemption). See generally Davis Treatise s 6.29; Asimow, 'Public Participation in the Adoption
of Interpretive Rules and Policy Statements', 75 Michigan L Rev 521 (I977).
23 See, e.g. Mobil Oil Co v FPC 483 F 2d 1238 (DC Cir 1973).
MICHAEL ASIMOW 257
were not moored to the APA, requir

such as oral argument or cross-exam
this development in the landmark ca
Natural Resources Defense Council,24
judicial over-reaching. Vermont Yank
judgment about appropriate procedur
requirements are satisfied. Vermont
innovations hatched by the DC Cou
that court have held that outsiders c
decision-makers during rulemaking25
prior to adoption of non-delegated
impact upon the public.26
(c) Judicial review of rules

At the same time as they enriched
fundamentally altered the judicial re
began when doctrines regarding ri
review of most rules long before th
courts also made it clear that ther
administrative action; to preclude
statutory language.28 The next step w
that those suffering even insignific
injuries might challenge rules or oth
such as those relating to sovereign im
also swept away.
Even more important than removal
scrutiny to which rules are subjected
and other discretionary agency actio
24 435 US 519 (1978). See Scalia, 'Vermont

Court' 1978 Sup Ct Rev 345; Beatson 'A Bri
(1981).
25 Home Box Office, Inc v FCC 567 F 2d 9 (DC Cir) cert den 434 US 829 (I977).
26 See Pickus v United States Bd of Parole 507 F 2d o107 (DC Cir 1974)-
27 Abbott Laboratories v Gardner 387 US 136 (1967).
28 Ibid.
29 Association of Data Processing Service Organizations v Camp 397 US 150 (1970).

30 APA s 702, amended by PL 94--574.
31 28 USC s 133i(a), as amended by PL 94-574.
32 Traditionally, the presence of facts which sustain a rule was presumed. Judicial review of rules
consisted of rubber-stamp approval (absent a strong claim of procedural invalidity, use o
erroneous factors, or ultra vires). See, e.g. Pacific States Box and Basket Co v White 296 U
176, 186 (1935).
question was 'arbitrary, capricious or an abuse of discret

Overton Park decision,34 the federal courts forged this tr
standard into an instrument for conducting searching rev
finding and policy choices. In addition to ascertaining th
used, that a rule is intra vires and satisfies constitutional c
appropriate factors were considered, the courts assess whe
conclusions are supported by the rulemaking record and
orderly process of reasoning and policy-making from tha
agency to articulate policy choices and explain why it
options."3 Increasingly, the agency-not the objector
persuasion of the rationality of the rule.36 Only the exp
agency's statement of basis and purpose can be considered
not a post hoc rationalization provided by counsel."
This process now consumes substantial judicial resource
judges to grapple with immense rulemaking records a
scientific, technological, and economic problems.38 Obser
courts have the resources or ability effectively to exercis
33 APA s 706(2)(A). Some statutes require reviewing courts to em

exacting level of scrutiny accorded to factual determinations made
proceedings: is the action supported by 'substantial evidence
s 706(2)(E). This standard seems unsuited to judicial review of find
determinations of policy made after informal rulemaking proceedings
the use of 'substantial evidence' as opposed to the 'arbitrary, capric
to insist on greater exclusivity of the rulemaking record and to
scrutiny of the agency's reasoning process. See Environmental D
I267, 1277 (DC Cir i980) (substantial evidence means more rig
standards for record exclusivity).
34 Citizens to Preserve Overton Park v Volpe 401 US 402 (1971), revi
appropriate funds to build a highway through an urban park des
construction only if the park route was the sole 'feasible and prude
Court held the decision was reviewable to examine whether it w
correct, based on consideration of the relevant factors and 'whether th
judgment .. . Although this inquiry into the facts is to be searchin
standard of review is a narrow one. The court is not empowered to
that of the agency.' Ibid., 416.
35 State Farm Mutual Auto Ins Co v DOT 68o F zd (DC Cir 1982) (
arbitrary because of failure to consider less extreme alternatives); E
33-37 (DC Cir 1976), cert den 426 US 941 (1976); DeLong, 'Info
Integration of Law and Policy' 65 Virginia L Rev 257, 301-09 (1979)
36 See Gifford, 'Rulemaking and Rulemaking Review: Struggling
Admin L Rev 577, 592-94, 613-17 (1980).
37 See Citizens to Preserve Overton Park v Volpe, supra n 34; Camp v
38 See, e.g. Sierra Club v Costle 657 F 2d 298, 41o (DC Cir 198I),
concerning desulphurization of emissions from coal burning power
pages in length.
MICHAEL ASIMOW 259
the prospect that it will occur undoubted

build complete records and justify the rat
(d) Executive and legislative innovation

The President, acting through his staff a
has taken a number of important initiat
the agencies. Immediately upon taking of
adoption of proposed major regulations
President also appointed a group of adm
to the regulatory schemes for which the
In addition, building upon procedures f
the new administration required rulema
prepare 'regulatory analyses' of 'major
contain detailed cost-benefit comparison
regulatory analyses of existing rules as w
the Office of Management and Budget w
both before and after they are announced
The subject of rulemaking reform ha
which is likely to enact a comprehensiv
already passed such a bill by unanimous
various requirements imposed by the co
factual underpinnings of a proposed rul
and-comment procedures, and requires a
presentations before adoption of a majo
39 One thoughtful observer, the Deputy General

contends that rigorous judicial review of subst
quality of rulemaking at EPA. Since judicial rev
any occurring at the agency level, the staff rea
'Formal Records and Informal Rulemaking'
Development of Administrative and Quasi-
Environmental Decisionmaking' 62 Iowa L Rev 7
40 The analogue for the regulatory analysis is th
federal agencies must file before taking major
human environment. National Environmental P
similar requirements.
41 Executive Order 12,291, 46 Fed Reg 13,19
Executive Power: Presidential Control of Age
Michigan L Rev 193 (i98i). Because of doubts ab
agencies are not subject to the Executive Ord
routinized review of all major rules, the executi
proceedings, often by off-the-record conta
alternatives. See Sierra Club v Costle, supra n 3
Verkuil, 'Jawboning Administrative Agencies;
L Rev 943 (i980).
42 S Bill 0o8o, 97th Cong ist Sess, enacted 24 Ma
43 See text at ns 18-22, supra.
observers think would be most unwise, it even

examination of agency employees if other pr
for resolution of factual issues. Under the Sen
detailed explanation of its contents, including
by commentators and an explanation of why a
All factual material on which the agency relie
file is the exclusive record for purposes of ju
bill would codify the regulatory analysis r
President through an executive order.44 Fina
'Bumpers, Amendment' which would remove
agency legal interpretations now enjoy when s
In addition to the likely enactment of co
legislation, Congress has frequently added idi
specific statutes. For example, various statute
rounds of notice and comment, consult with s
hearings, allow cross-examination, make spec
under the substantial evidence standard.46
Congress is increasingly experimenting with
the British practice of laying regulations
hundred statutes now contain a one-house
legislative veto is intensely controversial and i
doubt.47 Other Congressional tactics to gai
legislation which overturns specific rules or s
and placing riders on appropriation bills whic
regulations.48 Congress also exerts searching,
aspects of agency operation.49
Some interesting state developments also
number of pages of regulations had increased
and several large industrial projects were scr
44 See text at n 41, supra.
45 The Administrative Conference opposes the Bumper
difficult to assess. See i CFR 305-79-6, 45 Fed Reg 23
46 For example, see the elaborate rulemaking requirem
Currie, 'Direct Federal Regulation of Stationary
Pennsylvania L Rev 1389, 1437-41 (1980).
47 See Consumer Energy Council v FERC 673 F 2d 4
veto provision). See generally Bruff & Gellhorn, 'C
Regulation' 90 Harv L Rev 1369 (1977), indicating th
practice. It induces unhealthy timidity in administrat
staff members (and to special interests who are in touch
a trend toward legislative veto at the state level.
48 The Federal Trade Commission Improvement Act
FTC trade regulation rules in their tracks. Use of th
increasingly employed to prevent regulatory changes
Interference in Agency Enforcement: The IRS Exper
49 See W. Gellhorn, D. Byse, and P. Strauss, Administr
MICHAEL ASIMOW 261
regulation. The legislature respo

Office of Administrative Law, wit
the grounds they are ultra vires, p
addition, the Office is to review a
states have adopted rulemaking re
courts have imposed at the fede
'sunset laws' which provide that an
existence by a certain date unles
franchise.
(e) Conclusion
This brief account of regulation in America should give a British reader a fair
impression of the ferment swirling within the area. Rules and rulemaking are the
most controversial aspects of American administrative law, are high on the list of
the most controversial subjects in political science and economics, and are likely to
remain so for the foreseeable future. The intensity of the rulemaking dispute, and
the hodge-podge of judicial, legislative and executive proposals and initiatives,
stands in rather striking contrast to the general lack of concern about rulemaking
in Britain.
II. RULEMAKING IN BRITAIN
The law concerning regulation-making in Britain is not di

Although there is a well-established custom of pre-adop
interested groups, the law imposes no general requiremen
notice and comment and the rules of natural justice (or pr
inapplicable.53 Particular statutes do, however, impose dut
Interestingly, the Rules Publication Act 1893 required reg
in advance of their adoption, but the provision was f
50 California Government Code ss 11,340 et seq (1979).

51 Cal Gov't Code ss 11,340 et seq (1979); Frohnmayer, 'The Oregon
Act: An Essay on State Administrative Rulemaking Procedure Ref
(1980).
52 See generally Wade, Chap 22; Allen, Chaps 4-8 (3d ed 1965). Canadian rulemaking practice falls
between the British and American models. Since 1978, 'major' regulations have been subjected to
a mandatory requirement of public notice and consultation with respect to their 'social-economic
impact'. Except for this innovation, the process of informal consultation and parliamentary
scrutiny resembles the British model. One unique feature is required scrutiny of rules by the
Department of Justice before they are promulgated. See generally Institute for Research on
Public Policy (Stanbury ed) Government Regulation: Scope, Growth, Process (198o) Chap 4.
53 See Allen Chap 6; Bates v Lord Hailsham [1972 I WLR 1373. But see R v Liverpool Corp ex
parte Liverpool Taxi Fleet Operators Assn [1972] 2 QB 299. See text at n 84-7 infra for further
discussion of consultation.
54 See, e.g. s 75, Control of Pollution Act 1974-
considered superfluous)" and was repealed in 194

delegated legislation be published after adoptio
pronouncements having general applicability b
delegations need not be centrally published; th
such non-delegated legislation has any legal eff
stating reasons for decisions does not apply to
executive character'.58
Delegated legislation is laid before Parliament
the rule by resolution of either House.59 W
delegated legislation (usually in the context of
would seem that relatively few rules are review
presumed to support the rule, and that substant
vires or perhaps unreasonableness is seldom
comparison to review of judicial or administrati
As far as I could determine, after conducting
adopting and reviewing delegated legislation is
Many observers believe that regulations are by
all controversial matters are disposed of
combination of informal consultation, layin
responsibility to Parliament,62 and sporadic
adequate check on bureaucratic over-reaching.
persons who are professionally involved in a
rulemaking as a non-subject.
55 See Griffith and Street i30; J. Kersell, Parliament

(i96o) 6-9. Ironically it was also in I946 that the United
advance notice and comment in rulemaking.
56 Statutory Instruments Act 1946.
57 Evans, De Smith's Judicial Review of Administrative
cited as 'De Smith'); Wade 705-09, 725; Jergesen, 'T
Procedures in Great Britain and the United States' 30
confusion about the legal effect of non-delegated legis
Blackpool Corp v Locker [1948] 1 KB 349 (treating a cir
and criticizing its non-publication) with R v Sec'y of St
[ 1977] I WLR 766 and Metropolitan Bureau of Lewisham
58 Tribunals and Inquiries Act 1971, s 12(I) and (4).
59 See text at n 81-3 infra for further discussion of the pr
60 See generally Wade 709-22; De Smith 354-6; Griffith &
of Customs & Excises v Cure & Deeley Ltd [1962] I
administrative tax determinations from judicial review
of Trade [1977] QB 643 (minister's 'guidance' to Civil Av
61 See, e.g. McEldowney v Forde [1971] AC 632; Hoffman
Trade [I975] AC 295; Sparks v Edward Ash Ltd I1943]
116-25; but see Beatson, supra n 24 439-40. It would app
deferential in their review of local bye-laws. See Wade
Johnson [ 1898] 2 QB 91 (bye-laws should be benevolentl
62 For further discussion of ministerial responsibility, see
MICHAEL ASIMOW 263
III. PUBLIC INQUIRIES IN BRITAIN
The uniquely British institution of the public inquiry63 has no real co

American practice.64 Nevertheless, a discussion of the rather
judicialized procedures employed at major public inquiries provid
contrast to the unstructured character of British rulemaking
similarities to American rulemaking practice.
Of the six to eight thousand public inquiries each year, most are p
appeals from or objections to local authority decisions such as t
planning permission. However, the same vehicle is employed t
objections to important political and economic decisions concer
redevelopment, slum clearance, motorway routes, natural resource d
nuclear reprocessing facilities, airports, or new towns. Such major c
of land as the choice of a motorway resemble delegated legislation b
permanently affect the lives and property of large numbers of peop
not too surprising that the procedure employed at big pub
unmistakably resembles American rulemaking procedure.
A big public inquiry commences with general notice to the public,
notification to persons particularly affected, much like American ru
Procedure is typically governed by detailed rules which require disc
authorities' reasons as well as explanatory material-again lik
rulemaking.66 An inspector conducts a hearing which often inclu
testimony by experts and departmental representatives67 and vi
examination. Little practical distinction seems to be drawn between
filed objections and other members of the public.
63 On public inquiries, see generally R. Wraith and G. Lamb, Public Inquiries as an
Government (1971) (hereinafter referred to as 'Wraith & Lamb'); Wade Chap 24;
The Ideologies of Planning Law (i980) Chaps 2 & 8 (hereinafter referred to a
Beatson, supra n 24 448-62 (drawing parallels to US rulemaking); Koch, "
Hearing" in England' 23 William & Mary L Rev 219, 249-58 (same); Williams
Inquiries; Formal Administrative Adjudication' 29 Int'l and Comp LQ 701 (1980).
64 Both federal and state statutes frequently require public hearings before im
decisions are made, such as urban redevelopment, highway siting or zoning schem
however, these are unstructured affairs designed to serve a ritualistic function
gather information or seriously assist decisionmakers. See B. Schwartz & H.
Control of Government (1972) 137-42; 'Symposium on Public flearings' 2 i Ad L
But see Izaak Walton League of America v Marsh 655 F 2d 346, 363-5 (DC Cir
must respond in writing to objections lodged at a public meeting). The trial-
conducted by the Nuclear Regulatory Commission prior to issuing a constructio
new nuclear power facility are somewhat similar to the British public inquiry m
judicial procedure employed by the NRC has been unbelievably inefficient a
Tourtellotte, 'Nuclear Licensing Litigation' 33 Ad L Rev 367 (1981); Cramton, '
Trial-type Hearings in Nuclear Power Plant Siting' 58 Virginia L Rev 585 (1972).
65 Wade 791.
66 Wade 803. See, e.g. SI 1976 No 721 ss 5(3) and 10o(3) (department in motorway
furnish list of documents it intends to introduce in evidence); Fairmount Investmen
of State for the Environment [ 1976] WLR 1255 (HL).
67 Waller, Expert Witnesses at Planning Inquiries, [ x 98 1 ] J Plan & Envt'l L 394-
Big public inquiries often run on for weeks or

highly acrimonious, and absorb enormous quantities
resources. Barristers for the various interests must b
In these respects, inquiries go far beyond infor
procedure where at most only oral arguments are a
examination of witnesses.68 Finally, the inspector r
Minister who must state reasons for his ultima
requirement of reasoned decision for rules in Amer
decision, the inspector's report is disclosed and the
for a limited time.
After the public phase of an inquiry ends and insti
an observer continues to detect parallels to Amer
phase, a Minister may consult freely with othe
judgments without being limited to evidence of rec
differs from the inspector on a fact finding or take
evidence or expert opinion (except as to a matter of
opportunity to make contrary written represent
Similarly, in American rulemaking, the factual subm
be in the record and, if they are material, must ha
outsiders to comment on them. Moreover, some Am
ex parte contacts by industry groups with rulemake
British courts scrupulously enforce mandator
Tribunals and Inquiries Act 1971 and relevant regula
at public inquiries. In addition, they apply the rules
as it is sometimes called in this context) to the fact
(although not to the policy-making, purely adm
courts, the departments, the Ombudsman, the C
68 However, the Senate recently passed S io8o which would
rulemaking proceedings. See text at n 42-5 supra. If ultimat
by the President, this bill would bring American rulemaking
inquiry model.
69 Tribunals and Inquiries Act 1971 s 12(1), a provision made s
decisions of legislative rather than executive character. s 12(
& Local Gov't [1964] 1 QB 395, 410, 413-
70 See Lord Luke of Pavenham v Minister of Housing & Lo
planning merits is policy, not fact); Darlassis v Ministe
Similarly, American law now seems settled that the official
decision about a proposed rule may consult ex parte with oth
White House staff. See n 41 supra.
71 See, e.g. SI 1976 No. 721 s 15(2) (Highway Inquiry Proced
Health [19351 I KB 249. See note, 'Natural Justice after C
(1977).
72 n 25, supra.
73 See Bushell v Secretary of State for the Environment [1981] AC 75; Fairmount Investments Ltd
v Secretary of State for the Environment [ 1976] x WLR 1255-
74 Essex County Council v Minister of Housing and Local Gov't 66 LGR 23 (1967).
MICHAEL ASIMOW 265
public have all collaborated to evolve a code

the raw materials provided by the judicial c
from the Tribunals and Inquiries Act, from
inquiries, and from the various sets of proce
President, the courts, the agencies, the Adm
the public have gradually knit a sophisticate
judicial review from the few threads fur
obligation to review discretionary action.
Observers of the big public inquiry in Brit
uncontrolled growth of the creature." When
massive and sometimes over-enthusiastic
cross-examination take root in administrativ
that issues of policy will be decided on an ad
hire counsel for proceedings which last for
inquiries are not confined but extend to nati
for more coal or nuclear power,76 a well-
objections can turn into a monstrosity. T
House of Lords may point the way towar
under control as well as curbing judicial inter
watershed decision certainly reminds an o
turned the tide of judicial intervention and
rulemaking procedures under some reasonabl
Bushell arose out of a local inquiry into
construction of a stretch of motorway.
inspector's refusal to allow cross-examinat
projections of future traffic growth was no
Lords upheld a refusal by the Minister to
Department's methods of making such proje
speeches indicate that the matters in dispute
and thus were inappropriate for considerati
Minister's decisions were not prejudicial.
It seems likely that Bushell will sharply
decisions by inspectors and departments con
inquiries are conducted. Moreover, by labelli
policy (such as the need for nuclear power), i
put the issue (and its factual underpinnin
75 See Wade 818; Outer Circle Policy Unit et al,
alternative format with very little trial-type procedur
76 Although provision exists for a planning inquiry c
of need and policy in a non-adversary setting, it ha
Rowan-Robinson, 'Whatever Happened to the Plan
Envt'lL 307; Wraith & Lamb 200-02, 337-40.
77 Bushell v Secretary of State for the Environment [
78 See text at n 24 supra.
inquiry. To an outside observer, this result h

legislative fact and policy seem better suited to d
oral argument, rather than to trial procedure." H
the Bushell decision proves to be the occa
participation (even through written representatio
issues of need, methodology, projection, and poli
IV. SPECULATIONS ABOUT THE DIFFERENCE BETWEEN BRITISH AND

AMERICAN RULEMAKING
The balance of this paper consists of speculation about why t

and the procedure by which they are made is the subject of
and controversy in America and so uncontroversial and perh
Britain.
(a) Laying before Parliament

It may be thought that the benign British attitude toward del
be explained by the long-established procedure for laying
Parliament together with provision for annulment (or in
approval) of the rules of either House.81 As critics have poin
parliamentary control over rulemaking is quite ineffective as
considered rules. Membership on the Merits Committee
unpopular in light of its lack of power and the Joint Scrutin
little more attractive. In addition, the forty-day annulment
short and little time for debate is made available. As would b
are generally uninterested and poorly informed about the subs
administrators are ill-disposed toward making changes in
instruments. While the laying process is traditional and may
drafting of rules,8" it seems of little practical significance as
79 See G. Ganz, Administrative Procedures (1974) Chap 7; Wraith & Lam
Inquiry, supra n 75, 55.
80 When public inquiries proved to be unsuitable as a method for conside
town planning, a more flexible 'examination in public' emerged t
participation and an organized flow of information without the baggage
their unacceptable costs and delays. See generally N. Roberts, The Re
(1976) ir 6-I8, 228-30; McAuslan Chaps i & 2; Wade 165-67. Perhaps p
major natural resource or motorway questions will evolve in the same wa
81 See Wade 731-38; J. Kersell, Parliamentary Supervision of Deleg
Griffith & Street 84-99.
82 See Allen Chap 5; Beatson, 'Legislative Control of Administrative Rulem
British Experience?' 12 Cornell Int'l L 199 (1979), which summarizes
studies; Macrory, 'Lead in Petrol: No Cause for Action' [1981] J Plan
Parliamentary Select Committee on Procedure noted in its first repor
system provides only vestigial parliamentary control of Statutory Instr
of comprehensive reform.' 1977/78, Vol I para 3. 1o.
83 Wade 735-6; Griffith & Street 99.
MICHAEL ASIMOW 267
and could not explain the general satisfa

rules and the procedure by which they are
(b) The consultation process

A more plausible explanation for the Britis
problem is that officials routinely conduct
groups before regulations are adopted.84
mailing list of groups known to be inte
governments and scientific, industrial or p
draft regulations to them. Representatives
less frequently, actually meet informally wi
the rule. So far as I could determine, in ta
others interested in pending regulations, t
few tentative voices have suggested the cont
Yet an observer accustomed to a more
comment finds the British approach inadeq
mailing list cannot reach individuals nor
established groups which are not known to
only groups or governmental bodies already
already have undue influence over that bod
furnishes no obvious method by which int
with and respond to submissions by others
In America, by contrast, a proposed rule
which is subscribed to by many people inter
many of them previously unknown to a ru
comment and often triggers an outpouring
the comments made by others in the ru
Although an agency can, of course, solicit,
regards as worthless or trivial, this is a ris
84 See generally Wade 728-31 (describing consulta
Garner, 'Consultation in Subordinate Legislation'
the art of government); G. Ganz, supra n 79, Ch
Where statutes require consultation, the cour
Agricultural Training Bd v Aylesbury Mushro
growers excised from a regulation because they ha
sent a letter which was never received and their pare
But see Gallagher v Post Office [1970] 3 All ER 7
which groups to consult). On required consultation
Consultation' [ 1978] Pub L 290; Griffith & Street, s
85 See Beatson, supra n 82, 204, 224; R. Cranston,
supra n 79, Chap 6; Garner, supra n 84, 121-4.
86 Garner, supra n 84, 121. For a rare litigated exam
1373. In Bates, a statute which delegated authority to
for consultation with the Law Society. Another gr
attacked the rates, but the court held that there is
legislation.
even a British public inquiry. The risk is greatly

now require that an agency respond to th
commentators in the statement of basis and pur
rule. In addition, agencies frequently condu
interested person is invited to present argument
device for focusing attention on overlooked pro
speaker's feelings. The American system thus enr
inputs available to decision-makers and is un
democratic values of public participation in the m
as to improve the acceptability of those decisions
(c) The written constitution and judicial activism

The American written constitution explains man
system of the two nations, but it cannot furnis
differing attitudes toward delegated legislat
decisions concerning rulemaking are not based u
statutory interpretation, because constitu
requirements (similar in broad outline to Brit
adjudication, not to rulemaking.88
Nevertheless, it seems clear that the intense inv
with rulemaking has catalysed American atti
courts had been indifferent to claims that rulem
and deferential to agency contentions that rules
and political controversy surrounding the sub
arisen or at least would have been confined to leg
The willingness of American courts to involve t
visible confrontations with the executive bra
traceable to constitutional roots. The long tr
constitutionality of statutes has fostered a peculia
solve political controversies where a legislat
inadequate. Every day, American courts issue co
issues, such as the right to abortion, reforming e
library books, or prison reform, which would b
Britain. Consequently, American litigants disple
look naturally to courts for non-constitutional
popular distrust of government and academic cr
made judicial interventionism politically fea
87 See n i 17, infra.
88 See United States v Florida East Coast Ry 410o US
'Rulemaking "Due Process:" An Inconclusive Dialogue' 4
due process constraints (e.g. notice, a trial-type hearing, a
to a rulemaking proceeding in which a very small number
each case upon individual grounds. Vermont Yankee Nu
Def Counc 435 US 519, 543 (1978) (dictum).
MICHAEL ASIMOW 269
responded by rebuilding rulemaking procedur

conducting intensive substantive scrutiny of rule
Britain seems much less oriented toward usi
particularly those in which official discretion is
overtones are present. Instead, it seems that s
quietly through compromise rather than courtr
through conventional political processes. While B
less restrained in second-guessing discretionary
by local government officials, than in years past,8
judicial interventionism has certainly receded fr
attitude and custom remains enormous.
(d) Importance of delegated legislation

Delegated legislation is relatively uncontroversia
seeks to accomplish relatively little through t
regulations and most of them are less important
method of comparison, the number of new
instruments in 1977, 1978, and 1979 total I,918,
great many of which relate to matters dealt with
In the USA, it is estimated that 7,000 legislative r
the federal level,91 of which 2,000 have a 'signif
or on competition and more than one hundred h
economic impact of $i oo million or more).92 Whi
important by any standard, such as those concer
country planning, industrial safety regulations,
content in petrol, or control of advertising,93 t
harvest of regulations seem of very little general
The real question, therefore, is why Britain relies
Both nations grapple with the same problem
ensuring environmental and industrial safety
telecommunication and public utility services,
operating complex schemes of taxation, and
89 See De Smith 31-55; Bromley London Borough Counc
WLR 62 (HL); Secretary of State for Educ & Science v Tam
AC 1014; Laker Airways Ltd v Dept of Trade, supra n 6o
629; R v Sec'y of State for the Environment ex parte Br
593, 640-647.
90 See Vermont Yankee Nuclear Power Corp v NRDC supra n 24; FCC v WNCN Listeners Guild
450 US 582 (1981); American Textile Mfrs Inst v Donovan 452 US 490 (198I).
91 Of course, the fifty states and countless local entities are also heavy producers. By 1978, for
example, California had 28,000 pages of administrative regulations.
92 Neustadt, 'The Administration's Regulatory Reform Program: An Overview' 32 Ad L Rev 129
(i98o).
93 De Smith 14; Cranston, Consumers and the Law (1978) Chaps io & I i; Griffith & Street 38-41;
Macrory, 'Lead in Petrol: No Cause for Action' [ 98] J Plan & Envt'l L 258.
solutions through regulation in the broad sen

sector economic behaviour; this generally ent
of subordinate legislation.
Regulatory statutes are frequently the subjec
at the time of their enactment. Very frequentl
President bears little similarity to the final p
compromise between parties, regions, and spe
the two Houses of Congress and the manip
jealous of their prerogatives, often play an im
The result of this process is that many impor
never resolved in the legislation itself, becaus
found. In order to pass the bill, the gap i
responsibility for settling these matters to th
enforcing the legislation. The result, of cours
agency level94 and ultimately reams of import
left vague by the statute. In Britain, by cont
leave important details to the regulatory proc
time the bill is enacted in Parliament (assumin
majority).
Another important reason why Britain relies less on delegated legislation is that
it employs many alternatives both to regulation and regulations. For example,
nationalization of an industry means that it will be controlled through managerial
or contractual techniques and informal political pressures, not through formal
regulations."9 In America, nationalization is politically unacceptable for the most
part; consequently, communications, gas and electricity, transport, and basic
industries like steel remain in private hands. As a result, a regulatory structure
must be created to compel these enterprises to operate in the public interest.
In many cases, the regulatory agencies have a choice of discharging their
functions through case-by-case formal adjudication or through generally
applicable rules. At the time the APA was passed, adjudication was much more
frequently used than rulemaking, but there has been a marked shift in favour of
using rules. It became obvious that the regulation of industrial behaviour, market
structure, or pricing is difficult to achieve, and procedurally very cumbersome,
when pursued through individualized adjudications. We now perceive many
advantages to rulemaking: all competitors can be treated equally, harsh retroactive
effects can be avoided, and rulemaking is procedurally better adapted to the
94 See L. Jaffe, 'The Illusion of the Ideal Administration' 86 Harv L Rev 1183 (1973) (which
contains a brief intellectual history of the broad delegation-narrow delegation controversy). For
an excellent example, see Industrial Union Dept AFL-CIO v American Petroleum Institute 448
US 607 (1980).
95 See De Smith 12; B. Schwartz and H. Wade, Legal Control of Government (1972) Chap 2; Outer
Circle Policy Unit, What's Wrong with Quangos (1979); Ganz, 'Allocation of Decision-Making
Functions' [1972]Pub L 215.
MICHAEL ASIMOW 271
purpose.96 For example, rulemaking i

by lengthy and expensive trials, and
accessible than those created by a
exception of a few bodies like the Ci
agencies conduct hardly any complex
has been no corresponding stimulus
to displace adjudication.
Even where economic activity rema
in some form, Britain relies on a n
without the use of regulations. For ex
administrative agencies in America a
responsible, for example, for various
certain housing statutes." In additi
America are dealt with by voluntary
labour and consumer protection. But
the private sector is through hea
individualized orders. Typically, Pa
general enabling statute conferring
discretionary powers are often loose
central government departments.98
The difference in approach bet
consideration of several examples. Th
control in Britain relies heavily upon
by landowners for permission to dev
same problem through a more rigid
development which complies with th
more graphic example is the control
heavily on rules which identify pe
96 The choice of rulemaking rather than adj

Permian Basin Rate Cases 390 US 747 (196
prices); American Airlines, Inc v CAB 3
National Petroleum Refiners Assn v FTC
(1974).
97 In addition, controls on pesticides are administered judicially. See Royal Commission on
Environmental Pollution: 7th Report, Agriculture and Pollution (1979) 61-4, Cmnd 7644. See
also R. Cranston, Consumers and the Law (1978) Chap 8 (statutes regulating trade descriptions
and food quality enforced by courts without benefit of administrative regulations); Ganz,
'Allocation of Decision-Making Functions' [1972] Pub L 215; De Smith 16 (liquor and cabaret
licensing); McAuslan Chap 7 (1980) (control of housing conditions):
98 Even when a statute requires the adoption of subordinate legislation, the departments frequently
adopt regulations which leave important matters to be settled by discretion. The promulgation of
vague regulations was strongly criticized in the First Special Report from the Joint Committee
on Statutory Instruments, HC 169, p. Io-1I (1977/78).
industry by industry.99 In Britain, by cont

pollution is assigned to the alkali inspectorat
negotiate emission limitations with pollute
degree by guidelines or circulars, alkali
substantial autonomy to fashion compromis
It is, of course, difficult or impossible to s
system grounded in rules or a system grou
benefits. Nevertheless, some tentative co
approach clearly has significant advantages
emission limitations may be more stringen
because a rule must accommodate the least
business. A more discriminating approach c
to make greater investments in anti-pollutio
fails to take into account many site-specific
less stringent controls.
Even more important, the British negotia
adversary, confrontational style so chara
regulation. It tends to produce results m
litigation. But particular low-visibility com
would be achieved through a system of str
This can easily occur because the individual
a particular agreement is anxious to remain
officials with whom he must constantly
information and sophistication to insist on
appears that the non-adversarial British app
improving environmental quality and op
friction.
The realization that Britain leans more heavily than America toward
discretionary control rather than rigid regulation prompts an observer to reflect on
some fundamental differences between the two societies in their attitude toward
bureaucratic discretion.102 A recurrent strain in American culture has always been
99 For example, the provisions for air pollution controls on new plants are set at the federal level
and are both strict and uniform. 42 USCA s 7411 (I980). See Currie, 'Direct Federal Regulation
of Stationary Sources under the Clean Air Act' 128 U Pennsylvania L Rev 1389 (1980);
Ackerman & Hassler, n 8 supra. Similarly, water pollution control guidelines are set uniformly
for all similar dischargers, although variances can be requested. 33 USCA ss 1251-376 (1980).
See E. I. Du Pont de Nemours & Co v Train 430 US 12 (1977). Regulations are also extensively
employed in state environmental control schemes. See Currie, 'State Pollution Statutes' 48 U Chi
L Rev 27, 35-45 (1981).
Ioo See generally G. Rhodes, Inspectorates in British Government (198x) Chaps 6, 7, & 8
(hereinafter cited as 'Rhodes'); Royal Commission on Environmental Pollution, Fifth Report,
Air Pollution Control: An Integrated Approach (1976) Cmnd 6371; Garner, Control of
Pollution Encyc (rev 198o); R. Macrory and B. Zaba, Polluters Pay (Friends of the Earth,
I978).
Iox See Rhodes Chaps 6, 7, & 8.
I02 See H. Wade, 'Anglo-American Administrative Law: Some Reflections' 8I LQR 357 (1965)-
MICHAEL ASIMOW 273
distrust of government officials, from

bureaucrats at the bottom. The inte
currently, the level of suspicion se
Logically, people who distrust governm
discretionary powers in their hands,
abused and that persons will be treated
underlie the prevailing view that, whe
be limited. Of course, nobody pre
eliminated; a great many decisions m
Nevertheless, Americans characteristic
fettered, or at least structured, if not b
or by self-imposed, non-delegated subo
policy statements), by adherence to
decisional process.'03 Agencies are ofte
limitations on discretion.o04 This emph
standards recognizes that executive, leg
discretion is sporadic and ineffective in
The British attitude toward discretion
confers broad discretion upon an offic
fettered through adoption of binding
agencies may work out presumptive po
hear and consider applications to depart
103 See K. Davis, Discretionary Justice: A Pre

& 13 (1978); Morton v Ruiz 415 US 199 (197
discretion through rulemaking). Needless to say
remain. See Davis Treatise supra at ss 8.o
enforcement discretion).
104 See, e.g. lVogt v United States 537 F 2d 405
from departing from its well-established inter
n 57 (agencies required to observe their ow
delegated legislation). But see Rank v Nimmo
enforceable against agency absent estoppel). A r
its prior adjudicative precedents must supply
policies are being deliberately changed, no
Washington Metro Area Trans 642 F 2d 136
105 See generally McAuslan, supra n 63, an enl
interest ideology-which means that govern
unchecked discretion. Professor Wade catalogu
wider than their American counterparts. H.
41--6o. See also Meredith, 'Executive Discretio
52 (discretion of local authority to assign chi
American school board).
Io6 Galligan, 'The Nature and Function of Polic
De Smith 311-17; Merchandise Transport Lt
173.
cases.'O' According to some decisions, the p

than another factor to be applied.'08 Judicial
of course, but is relatively infrequent and ge
appears to a foreign observer that the Ci
confidence in the eyes of both the general p
perhaps of the homogeneity of the educated
the Civil Service and the judiciary. Hence, it is
pressure to pin down many details through
things out in practice."0
(e) Ministerial responsibility

It is sometimes asserted that ministerial respo
substitute for procedural controls on rulemak
and-comment procedures, or for more int
minister is always answerable to Parliame
department, the argument suggests, his scru
adequate checks against bureaucratic ov
responsibility is a corner-stone of the British
significant restraint on highly visible admin
irrelevant as a technique to improve the q
adopted by an army of Civil Servants."3
Certainly, in making fundamental decisions
development, or the location of a nuclear repr
people do not rely on the abstract concep
Parliament to serve as a check on adminis
participation, or to confer political legitimacy
107 R v Port of London Auth ex parte Kynoch Ltd

Minister of Technology [ 1971] AC 61o; R v Sec'y of
London Borough Council, supra n 89. See the conf
Phillimore LJ in Sagnata Investments Ltd v Norwich
io8 Galligan, supra n 105, 348--50.
o09 M. Shapiro, Courts (i981) 116-25. But see the cas
review of discretionary action was anything but d
Commissioner for Administration (Ombudsman) ser
well. See Wade 77-90; Bradley, 'The Role of the Omb
Citizens' Rights' [1980] Camb L 304, 324-51; Jergesen
Iio But see Jowell, 'The Legal Control of Administr
cautiously favours limiting official discretion thr
recognizes large areas in which the costs of doing so ou
are not functionally suited to decision except through
iii See, e.g. Local Government Bd v Arlidge [1915
Parliament is only effective check on decision to clos
the subject of ministerial responsibility and its relati
Ganz, 'Allocation of Decision-Making Functions' [ 197
112 In addition, complaints about rulemaking c
Commissioner for Administration (Ombudsman). Wa
113 See J. Mitchell, Constitutional Law (2d ed 1968) 2
MICHAEL ASIMOW 275
the institution of the local public in

procedure whereby those who will b
it. In addition, the inquiry serves
argument to the minister who is resp
inquiries are so deeply rooted in Brit
proceeding will always have to occu
commitment involving the use of land
Since people do not rely upon m
participation, adequate information f
is difficult to understand why that
control on the process of rulemaking
public inquiry have come to bear a
rulemaking procedure,114 although t
excessive formality and judicializat
rulemaking and public inquiry proce
and involvement and responsive po
decision about policy in the hands of
for making it. If they are left suffici
structured system of notice-and-co
principle of ministerial responsibility
minds of the public that a decision ab
introduced at a trial.'16
V. CONCLUSION
This article suggests several explanations for the striking

American and British attitudes toward rulemaking. T
explanation seems to flow from deep cultural differences
Americans traditionally distrust officials and favour adve
judicial interventionism. In Britain, on the other hand, pe
relying on official discretion to strike compromises a
judgments which are never reviewed by courts. In ad
observers seem satisfied with the combination of contr
rulemaking-informal consultation, laying before Parliame
Ombudsman, and ministerial responsibility.
In America, we have many more rules than in Brit
procedures for making them-and vastly more dissatisfact
and substantive result. On the other hand, when it com
about land use, motorway construction, or natural resour
has far more procedural formality-and seemingly mor
114 See text at n 63-72, supra.
I 15 See text at n 79, supra.
rr6 See Beatson, supra n 24, 457-60, 463 (excessive judicializatio
inconsistent with maintenance of political responsibility).
with the result. This peculiar circumstance might sugges

conclusion: that the acceptability of procedure to person
process is in inverse proportion to the formality of the
conclusion is certainly counter-intuitive and contradicts
Instead, it seems clear that persons find a particular out
they believe that their views have been invited, heard, an
The fact that people seem dissatisfied with rules in Am
decisions concerning land use in Britain simply refl
orchestrated and vehement opposition to particular subst
could never be neutralized by any procedure. Instead, opp
deflect their substantive opposition against whateve
employed."' Consequently, in an attempt to satisfy th
become ever more formalized, delays and legal hurdles mu
enough procedure to satisfy them."' This might suggest
to formalize its rulemaking and wrong to formalize its inq
it needs is to articulate rulemaking procedures and thus
expectations like that which afflicts its inquiry practice
American rulemaking.
But this conclusion would be too hasty, because it conce
complaints and controversy and not enough on the comp
procedures. Each country has something to teach the oth
procedures have improved the quality of rules an
participation very satisfying to the persons who mu
Similarly, British inquiry procedures, for all their defects
closer to government decisions having critical effects on
country will, or should, abandon these procedures, thoug
from time to time, lest the desire to make procedures acc
overwhelms competing values of efficiency and accuracy
begin the process of judicious sampling of the other's fum
the public in critical administrative decisions.
I117 This simple observation underlies both the concepts of natural ju

due process in America. For discussion of the link between the legi
process and the acceptability of its procedure to persons affected b
and Legitimacy (1977) Chaps I, 3, & 20; Cramton, supra n 64; Verk
of Administrative Procedure' 78 Colum L Rev 258 (1978); Thiba
Procedure' 66 Calif L Rev 541 (1978).
ix8 See Verkuil, supra n 117, for extensive discussion of the hi
opposition to substantive outcomes and a desire for greater procedura
I19 The pending regulatory reform bill in the United States is an ex
response to widespread disagreement with regulatory outcomes, Co
verge of legislating a new mandatory and inflexible set of proced
supra.
20o The much less structured public hearing procedure in America serves a merely ritual function
and appears to be a source of intense frustration to those who seek to take advantage of it. See
Wexler, 'The Public Hearing in Federal and State Legislation' 21 Ad L Rev 165 (1969).

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Delegated Legislation: United States and United Kingdom

Author(s): Michael Asimow

A comparison of delegated legislation' in Britain and America revea

*Professor of Law, University of California, Los Angeles Law School. My late

Oxford Journal of Legal Studies Vol. 3, No. 2

I. RULEMAKING IN THE USA

This section is intended to provide the British reader

(a) An overview of rules and rulemaking in American governm

efficiency or cost, that they suffer fr

(b) Rulemaking procedure

moreover, the undemanding steps required to adopt

I5 APA s 553(b)(A), (B), (d)(I), (2), (3). In addition, APA s 553 is

were not moored to the APA, requir

(c) Judicial review of rules

24 435 US 519 (1978). See Scalia, 'Vermont

29 Association of Data Processing Service Organizations v Camp 397 US 150 (1970).

question was 'arbitrary, capricious or an abuse of discret

33 APA s 706(2)(A). Some statutes require reviewing courts to em

the prospect that it will occur undoubted

(d) Executive and legislative innovation

39 One thoughtful observer, the Deputy General

observers think would be most unwise, it even

regulation. The legislature respo

II. RULEMAKING IN BRITAIN

The law concerning regulation-making in Britain is not di

50 California Government Code ss 11,340 et seq (1979).

considered superfluous)" and was repealed in 194

55 See Griffith and Street i30; J. Kersell, Parliament

III. PUBLIC INQUIRIES IN BRITAIN

The uniquely British institution of the public inquiry63 has no real co

Big public inquiries often run on for weeks or

public have all collaborated to evolve a code

inquiry. To an outside observer, this result h

IV. SPECULATIONS ABOUT THE DIFFERENCE BETWEEN BRITISH AND

The balance of this paper consists of speculation about why t

(a) Laying before Parliament

and could not explain the general satisfa

(b) The consultation process

even a British public inquiry. The risk is greatly

(c) The written constitution and judicial activism

responded by rebuilding rulemaking procedur

(d) Importance of delegated legislation

solutions through regulation in the broad sen

purpose.96 For example, rulemaking i

96 The choice of rulemaking rather than adj

industry by industry.99 In Britain, by cont

distrust of government officials, from

103 See K. Davis, Discretionary Justice: A Pre

cases.'O' According to some decisions, the p

(e) Ministerial responsibility

107 R v Port of London Auth ex parte Kynoch Ltd

the institution of the local public in

This article suggests several explanations for the striking

with the result. This peculiar circumstance might sugges

I117 This simple observation underlies both the concepts of natural ju

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