Delegated Legislation and Public
| Published date | 01 June 1949 |
| DOI | http://doi.org/10.1111/j.1467-9299.1949.tb02675.x |
| Date | 01 June 1949 |
| Author | Harry Street |
Delegated Legislation and the
Public
By
HARRY
STREET
INCE
1932, when the Committee on
Ministers' Powers conferred at least
its
qgalified blessing on delegated legis-
lation,
it
has not been seriously denied
that delegated legislation is a necessity.
Attention has rightly been turned to
securing the smooth and just exercise of
these rule-making powers.
Three
organs
can provide safeguards
against abuse-Parliament, the courts
and the public-and
it
is with the third
of these that this article deals. Presum-
ab!y,
the framer of delegated legislation
has the following objectives in mind
:
to
obtain the best possible administrative
action, to convey a sense of justice to
those affected by that action, and to win
their co-operation in its execution. These
objectives can be attained on!). if at all
stages there is close liaison with the
public.
CONSIYLTATION
OF
THE
PUBLIC
What part should the public play in
the making of delegated legislation
?
The
hasty reply may be that the process of
administrative rule-making is essentially
similar to that of legislation and that its
procedure should be patterned after that
of Parliament. Yet Parliament is repre-
sentative of a cross-section of the com-
munity, and, in theory at least, its
members therefore bring to bear on the
performznce
of
their duties the current
opinion and knowledge of the public.
The department drafting delegated legis-
lation, on the other hand, does not
ascertain and register the sovereign will
of
the people
:
Parliament has already
done that. Working
out
of the public
gaze and free from direct electoral
control, it makes discretionary choices
within the field assigned to it by the
enabling stamte. These assignments are
often made because of the complexity or
technicality of the subject-matter, and in
consequence they frequently can be
carried out only if outside opinion
is
taken or conflicting public viewpoints
weighed in the balance. In short,
parliamentary methods are inappro-
priate if the administration
is
to elicit
systematically and specifically the in-
formation and probabilities necessary to
fair and intelligent action.
Nor is English practice very helpful on
the matter. Statutes are usually silent
as to consultative measures in rule-
making, with the result that the depart-
ments decide what informal consulta-
tions are held, and, indeed, whether there
are to be any at all.
It
does seem to be
the practice to consult organised bodies
directly affected by proposed rules.
Occasionally statutes (for example, the
London Traffic Act, 1924) require a
Minister to consult a statutory advisory
body. The National Insurance Act,
1946 (section
74):
goes further in
requiring the observations of the statu-
tory committee on proposed regulations
to be submitted to Parliament along with
the draft regulations. A perusal of the
reports of this committee shows what
valuable amendments and criticisms it is
making. Some
Acts
(for example, the
Road Traffic Act, 1930 (section
11
1
(2)
),
provide that
"
the Minister
shall consult with such representative
organisations as he thinks fit." Such a
requirement is without legal effect: if
the Minister makes regulations without
consulting any organisations whatever,
their validity is in no way affected.
Another device, mainly used when the
contemplated administrative Act is local
in
scope, as, for instance, in the New
Towns
Act, 1946, is for a civil servant in
the department concerned to hold a
public inquiry and report back to the
Minister. One searches in vain for the
application of any consistent principles
in the choice of the particular procedure.
It is, however, suggested that the
following points are relevant when :he
extent of public participation in rule-
making
is
under consideration.
(1)
Does the problem directly afYect
private interests or is it a matter of
Government routine
?
If,
for example,
the question is merely the business hours
of a Government office, then clearly
there is less need for the public to have a
108
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