The British Parliament is a supreme legislative body and its powers are not subject to any constitutional limitation. It can delegate to other bodies whatever powers it may choose. The extent and type of powers which may be delegated is not therefore fixed.
It is free to create whatever agency it pleases and to delegate to it whatever powers it may consider necessary. But still we can note certain types of delegated legislation resorted to by the Parliament till now. The Parliament can, but is not likely, to change the existing pattern.
The various types of delegated legislation are:
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(i) Orders of the Queen-in-Council,
(ii) Departmental or executive regulations,
(iii) Rules of the Supreme Court and County Courts,
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(iv) Bye-laws of autonomous bodies, e.g., Corporation,
(v) Bye-laws of local authorities.
1. Orders-in-Council:
A large number of orders and regulations are issued by the Privy Council. These orders and regulations affect matters of importance. The field covered is very wide and they touch upon the interest of the various sections of the society.
These orders are of two kinds Firstly they may be issued under the authority of the prerogative powers of the Crown. Such orders derive the legal authority not from a grant by the Parliament out from common law.
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There is no statutory authority for making such orders and they are issued on the strength of the prerogative powers of the Sovereign, e.g., legislature for conquered territories not represented by the local legislature, regulation and control of trade and commerce during war, etc.
Such orders are subject to the review by the courts like all other acts done under the authority of the prerogative. But such orders must be given utmost weight though they cannot normally override the ordinary law of the land.
Secondly, Orders-in-Council are issued under the authority and in accordance with the powers givers by an Act of the Parliament. In this case the orders so made must be within the limits laid down by the Parliament.
In both cases the principal point of consideration is whether such legislation is in any way different from executive legislation.
The answer appears to be that there is no substantial difference between the two. The Privy Council meeting in such cases simply means a meeting of. a few Privy Councilors including three of four ministers, the Lord President, of the Council and the clerk in the Privy Council.
Thus it is clear that it is really the executive which exercises these powers and the sanction of the Council is a mere formality. Such orders, of course, receive more publicity and the executive action is considered or can be considered with advantage by outside elements.
2. Departmental or Executive instructions or regulations:
When the power of legislation is directly delegated to the administration, e.g., a Board, Committee or a Minister, then the exercise thereof results in departmental or executive orders and regulations. The Statutes of the Parliament while providing for a certain legislative scheme leave many details to be completed by the delegate.
This type is very important and together with the previous one is responsible for the bulk of delegated legislation. Sometimes very wide powers are conferred upon the administration. This wide delegation is not desirable as in such case the control of administrative action by the court becomes difficult.
Perhaps it would be too much to say that it outs the control by the Judiciary, or at least it renders judicial control more difficult and less effective. This extensive use of delegated legislation is increasing. Now only the broad outlines are laid down by the Parliament while the rest is left to the administration.
The circulars have no legal sanction behind them in the sense that they were not issued under the authority of any statute. They have no statutory basis and one mere departmental instruction. They cannot ‘therefore, forms the foundation of any action aimed at ‘denying to citizen’s fundamental right under Art. 19 (1) (a) of the Constitution.’
3. Rules of the Supreme Court and the County Courts:
The Parliament may, by a Statute, constitute and confer upon certain bodies the rule-making powers for specific purposes. The Courts in England are given a wide rule-making power. This task is entrusted to the Rules Committee of the Supreme Court and of County Courts.
The Procedural law is an important breach and a valid cause may be destroyed because of a technical mistake. Further this body of law requires changes in the same way as substantive law according to the exigencies of the time.
The British practice of entrusting the Judicial branch with the power of regulating and controlling its procedural law to a great extent has the advantage that the subject is handled by those who are most suited to perform this task.
The rules Committee of the Supreme Court completely control the procedure in High Court. Though such rules can be overridden by an address of either House and must be placed before the Houses, yet it is interesting to note that so far it does not seem to have been done on any occasion.
County Court Rules dealing with the procedure and costs are drawn up by the Rules Committee of County Courts. Such rules are not subjected to the control of the Parliament.
These rules come into force when the Lord Chancellor with the consent of the Rules Committee of the Supreme Court confirms them. This system imparts to the procedural law of the courts a uniformity of methods and objects right from the Supreme Court down to the County Courts.
4. Bye-laws of autonomous bodies, e.g., Corporations:
Autonomous bodies are given powers of making bye-laws affecting themselves and the public, e.g., public utility authorities for light, water, etc.
These authorities are usually given powers to regulate their own working and to lay down rules for the dealings with the public regulating the public behaviour with regard to the particular service. Such bye-laws are subject to judicial review inasmuch as they must not be ultra vires the parent Statute.
Another kind of autonomous bodies is that where the power of making bending rules is not conferred by any statute, e.g., Trade Unions. Such bodies are recognised to have the power of making binding rules for themselves.
The associations of Employers are another example. The rules of such associations are termed voluntary but it is simply a fiction as in effect these rules are binding upon members like other rules, e.g., rules of industrial organisation, professional associations, etc.
5. Bye-laws of Local authorities:
Usually whenever the Parliament either creates a new local authority or alters the powers of an existing one, it empowers such authority to make bye-laws for specific purposes. These authorities may be for a county, borough, or may be rural.
Such authorities exercise extensive powers for the safety, public health and generally for good rule and government. These bye-laws like ordinary laws are binding upon all concerned and incur penalties for their breach.