Delegated Legislation in England

• Published date: 01 December 1949
• Author: S.A. De Smith
• DOI: 10.1177/106591294900200402
• Date: 01 December 1949
• Subject Matter: Articles

DELEGATED LEGISLATION IN ENGLAND*
S. A. DE SMITH
Lecturer in Law at the London School of Economics
and Political Science
I
N ENGLAND the legal omnipotence of the King in Parliament means
that there is no constitutional impediment to the delegation of legisla-
tive and judicial powers to the Executive. In the sixteenth century-
a 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.’ With the vast extension of the functions of gov-
ernment in the nineteenth century, Parliament was compelled to dele-
gate 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,~ came into operation,3
3
all such
Orders in Council and a large proportion of departmental regulations have
been classified as &dquo;statutory instruments.&dquo; Orders in Council are made
at a formal meeting of the Privy Council. They do not differ in sub-
stance 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 dele-
gated legislation to be made in Council: first, the fixing of the &dquo;appointed
There is no comprehensive and up-to-date work on delegated legislation in England. Most of the
essential material will be found in the following books: Carleton Kemp Allen, Law and Orders
(London, 1945); Law in the Making (4th ed.; Oxford, 1946), chap. vii; Sir Cecil T. Carr, Dele-
gated Legislation (Cambridge, Eng., 1921); Concerning English Administrative Law (New York,
1941); Lord Hewart of Bury, The New Despotism (London, 1929); Sir W. Ivor Jennings, Parliament
(Cambridge, Eng., 1939), chap. xiii; Emlyn C. S. Wade and G. Godfrey Phillips, Constitutional
Law (3rd ed., London, 1946), Part VII, chap. v; John Willis, The Parliamentary Powers of English
Government Departments (Cambridge, Mass., 1933). See also William O. Hart (ed.), Hart’s In-
troduction to the Law of Local Government and Administration (4th ed., London, 1949), chap.
xiv. And see especially the Report of the Committee on Ministers’ Powers, Cmd. 4060/1932.
1
In his Dictionary Johnson defined Excise as "a hateful tax levied upon commodities, and adjudged not
by the common judges of property, but wretches hired by those to whom excise is paid."
2 9 &
10 Geo. 6, c. 36.
3 On January 1, 1948. The term "statutory instrument" is defined in Section 1 of the Act and in Statu-
tory Instruments, 1948, No. 1.
514

---

515
day&dquo; on which a statute is to come into operation, and, secondly, legis-
lation for the majority of colonies and for other dependencies.4 Other
types of authorities exercising delegated legislative powers include inde-
pendent statutory authorities, e.g., the Milk Marketing Board, which
makes schemes having the force of law; local authorities, which are em-
powered to make by-laws; and professional bodies, e.g., the Council of
the Law Society, which makes regulations for the compulsory attendance at
law schools of clerks articled to solicitors. The Rules Committee of the
Supreme Court, a body consisting of the Lord Chancellor, some of the
superior judges and representatives of both sides of the legal profession,
makes rules of procedure for the High Court and Court of Appeal. But
it is around the law-making powers exercised by the Crown and its Min-
isters that the main constitutional controversy has revolved.
The growth of delegated legislation towards the end of the nine-
teenth century did not at first arouse any great alarm among lawyers
and students of politics. Dicey, a fierce opponent of collectivism, thought
that Parliament was too conservative in delegating legislative powers to
the Executive.5
Widespread public interest in the question was first
aroused in 1929, when Lord Chief Justice Hewart published his remark-
able diatribe, The New Despotism. &dquo;Armed with a title nicely calcu,
lated to arouse the worst misgivings, Lord Hewart came with a turbu-
lent impetuosity to the defense of those principles for which ’Hampden
had died in the field and Sidney on the scaffold.&dquo; ’6 He went so far
as to suggest that the delegation of judicial powers to Ministers and ad-
ministrative tribunals to the exclusion of the ordinary courts, together with
the excessive delegation of legislative powers, was part of a plot hatched
by the bureaucracy to acquire arbitrary power.7
7
Partly as a result of
the heat engendered by this book, the Committee on Ministers’ Powers
was appointed in the same year to inquire into delegated legislation and
administrative adjudication. As was to be expected, the Report of the
Committee, published in 1932,8 rejected Lord Hewart’s more extrava-
gant assertions. It included a valuable factual survey of delegated legis-
lation, explained why in certain circumstances the practice was indis-
pensable, drew attention to some of its dangerous tendencies, and pro-
posed improvements in existing safeguards against its abuse.
4 "The normal organ of imperial legislation is not Parliament at all, but the Crown in Council." Martin
Wight, The Development of the Legislative Council, 1606-1945 (London, 1946), p. 139. For some
colonies the Crown legislates by Order in Council under powers derived from the royal prerogative.
Such powers are not of statutory origin and instruments made thereunder are not delegated legis-
lation.
5
Emlyn C. S. Wade (ed.), Introduction to the Study of the Law and of the Constitution (9th ed.,
London, 1939), pp. 52-3.
6
R. V. Vernon and Nicholas Mansergh, Advisory Bodies (London, 1940), p. 74.
7 It is ironical that in Vyshinsky’s standard text-book on Soviet Administrative Law Lord Hewart’s attacks
on the growth of delegated legislation in England are quoted with approval. See A. Nove, "Some
Aspects of Soviet Constitutional Theory," 12 Modern Law Review 12, 25 (1949). And see Vy-
shinsky, The Laws of the Soviet State (New York, 1948), p. 373.
8
Cmd. 4060/1932.

---

516
The Committee’s reasons for regarding delegated legislation as a
necessity remain unanswered today. Parliament cannot be expected to
pass a new Act every time it is desired to amend a statutory schedule
of dangerous drugs, or to take extraordinary measures to deal with a stop-
page of work in the public utility services.
Complex reforms would
often prove abortive unless Parliament, after laying down the general
principles, were to entrust the responsible Minister with their detailed im-
plementation by virtue of regulations made by him and at dates to be
fixed by him. Again, delegation is necessary where a policy approved by
Parliament demands intimate central direction but cannot be imposed uni-
formly throughout the country; thus all local planning authorities are
now obliged to prepare comprehensive development plans which will be
subject to confirmation by the Minister of Town and Country Planning.
Above all, pressure on parliamentary time makes it impracticable and
undesirable for Parliament to occupy itself with the minutise of legisla-
tion.
It is now universally acknowledged that delegated legislation is
bound to remain an important feature of English politics. In a report
prepared before the General Election of 1945 by a group of Conserva-
tives the view was expressed that it was &dquo;inevitable that the practice of
delegating legislative powers to Ministers should tend to increase rather
than to diminish.&dquo; 9 Under the present Labor Government, Parliament
has delegated its powers far more generously than in pre-war years. The
Government now has the power to make regulations &dquo;generally for en-
suring that...