Delegated Legislation in England

Abstract

IN ENGLAND the legal omnipotence of the King in Parliament means that there is no constitutional impediment to the delegation of legislative and judicial powers to the Executive. In the sixteenth centurya period of rapid social and economic change-Parliament was already conferring sweeping legislative powers upon the Crown. And if by the eighteenth century parliamentary delegation of powers had become much less liberal, the judicial powers bestowed upon the Commissioners of Customs and Excise sufficed to provoke Dr. Johnson into splenetic and immortal protest.1 With the vast extension of the functions of government in the nineteenth century, Parliament was compelled to delegate far-reaching powers to a variety of administrative authorities. This century has seen the legislative output of Parliament easily outstripped in bulk and complexity by subordinate legislation. The present article will deal with the delegation of legislative powers, and it may be useful at the outset to state what the principal forms of delegated legislation are today. Legislative powers may be delegated to the Executive in one of two main forms: His Majesty may be empowered to make Orders in Council for specified purposes; or power to make regulations, rules, schemes, or orders for those purposes may be given to a named Minister. Since the Statutory Instruments Act, 1946,2 came into operation,3 all such Orders in Council and a large proportion of departmental regulations have been classified as statutory instruments. Orders in Council are made at a formal meeting of the Privy Council. They do not differ in substance from departmental regulations, but it is sometimes appropriate to lend the dignity of an ancient institution to the making of an important legislative instrument. Also, it is usual for two particular types of delegated legislation to be made in Council: first, the fixing of the appointed