Delegated Legislation And Publication

Publication Date01 Sep 1974
AuthorD. J. Lanham
DOIhttp://doi.org/10.1111/j.1468-2230.1974.tb02400.x
DELEGATED LEGISLATION
AND
PUBLICATION
IT
is confidently asserted by many writers
on
constitutional
or
administrative law that delegated legislation comes into operation
on
the date on which
it
is made and not
on
the (normally later)
date
of
its pub1ication.l They recognised that this supposed com-
mon law rule is modified in criminal cases by the defence provided
by section
a
(2)
of the Statutory Instruments Act
1946,
and regard
that section as merely an exception to the general rule. The
anomalies and injustice which such
a
general rule
is
capable
of
producing will be illustrated in the course of this paper, the main
purpose of which will be to demonstrate that the common law
rule is quite different.
It
is submitted, then, that the general
common law rule is that delegated legislation does not come into
force until
it
is
published. Section
a
(2)
of the Statutory Instruments
Act
1946
is,
accordingly, not an exception to the common law
rule, as generally assumed, but a rather limited statutory declaration
of that rule.
Full consideration
of
the common law rules about publication
requires some treatment of the allied topic of ignorance
of
law in
relation to delegated legislation. The law will accordingly be
examined under three heads
:
1.
The requirement
of
publigation at common law;
2.
Ignorance of law in relation to delegated legislation;
a.
The Statutory Instruments Act
1946.
THE REQUIREMENT
OF
PUBLICATION
AT
COMMON
LAW
In constitutional terms the simplest case is one where there
is
no
statutory requirement of any particular form of publicity and where
the piece of delegated legislation does not specify the date on which
it is to come into operation. Here there is clear authority that the
legislation does not come into effect until published. In
Johnson
v.
Surgunt,2
an Order, made by the Food Controller under the
Defence of the Realm Regulations, in part required importers of
beans to hold them at the disposal of the Controller unless they had
1
p.g.:
C.
K.
Allen,
Law and Orders,
3rd
ed.,
pp.
111-115;
de
Smith,
Judicial
Review
of
Administrative Action,
3rd
ed.,
p.
127;
Kersell,
Parliamentary
Supervision
of
Delegated Legislation
,(1960),
p.
10;
Hood
Phillips,
Constitutional
and Administrative Law,
'5th
ed.,
p.
493;;
Wade,
Administrative Law,
3rd
ed.,
p.
335;
Halsbury,
Laws
of
England,
3rd
ed.,
Vol.
86,
p.
494.
But
see:
Griffith
and Btreet,
Principles
of
Administrative Law,
6th
ed.,
p.
105;
Keir
and
Lawson,
Cases in Constitutional Law,
6th
ed.,
p.
38.
2
[1918]
1
K.B.
101.
510

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