Delegated Legislation—Some Recent Developments
| Date | 01 July 1949 |
| DOI | http://doi.org/10.1111/j.1468-2230.1949.tb00127.x |
| Author | J. A. G. Griffith |
| Published date | 01 July 1949 |
DELI3GATE.D LEGISLA4TION-SOME
RECENT
DEVELOPM1I:N'l'S
IN
this paper the principal developments discussed are the work
of
the Select Committee of the House of Commons on Statutory Instru-
ments, and the growth of the consultative method with particular
reference to the National Insurance Advisory Committee.
1.
The Select Committee on Statutory Instruments.
Statutory instruments can be regarded from two standpoints.
First, their likely effect may be looked at, and examinatiori
is
then
directed to their merits
to
see if their provisions are
desirable.
Secondly, they may be considered as the formal results of the
delegated power, in which case the question is whether they are the
type
of
instrument which the Legislature intended
or
expected to
emerge. From either
of
these standpoints Members may speak
when the instrument has been laid before Parliament.'
It
is some-
times argued that this laying
is
ineffective
;
this generally seems
to
mean that
too
few instruments are examined as to their merits and
derives more from
a
dislike of governmental
'
interference
'
than
from
a
fear that the substance of the instrument does not reflect
the intention of the parent Act. The most cogent
of
the reasons
for
the delegation
of
the power to legislate is the shortage
of,
Parliamen-
tary time, and the requirement that Parliament should reconsider
the merits and policy
of
any large number
of
instruments defeats the
purpose of delegation. The policy of the parent Act has been
debated;
so
have the principles of its sections; interests affected by
the Act have been consulted, their representations considered,
amendments made and final decisions taken by the Government.
The point was made most clearly by a Government Department
to
the Donoughmore Committee; in
a
memorandum the Ministry
of
Transport stated
:
'
Unless Parliamentary approval is to be accorded
in
a
way which might be regarded
as
perfunctory,
it
would be
difficult, even
if
it
were possible,
to
avoid a reopening of the whole
merits
of
the various provisions contained in the Rules and Orders
submitted'.l
It
is therefore right that only
on
rare
occasione
should the merits and policy form the basis of
a
prayer for annul-
ment
or
the opposition to an affirmative resolution.
In the House of Lords, those instruments which require affirma-
tive resolutions are referred to the Special Orders Committee, which
decides,
if
the order
is
of
the nature of
a
public Bill, whether there
should be a debate and,
if
the order is
of
the nature of a private
or
1
Though
not
so
an
to
debate afresh the
policy
of
the
parent
Act.
a
Minutea,
p.
268
(6).
297
298
THE
MODERN
LAW
REVIEW
YOI..
12
hybrid Bill, whether it should, because of the petitions laid against
it, be considered by
a
Select Committee. The question of shortage
of time which
so
determines the attitude
of
the House of Commons
scarcely arises in the House of Lords.
The Select Committee regards the formal
or
constitutional
aspects. The Committee was first appointed in
1944,J
after a debate
in that year,' to consider every statutory instrument laid
or
laid in
draft before the House of Commons, upon which proceedings might
be taken in either House in pursuance of any Act
of
Parliament,
with a view to determining whether the special attention of the
House should be drawn to
it
on any of the following grounds
:
that it imposes charges, is not open to challenge in the courts,
appears to make unusual
or
unexpected use of the powers conferred,
purports to have retrospective effect where the parent statute
confers no such express authority,6 that there has been unjustifiable
delay in publication
or
in the laying before Parliament
or
in notify-
ing the Speaker in accordance with section
4
(1)
of the Statutory
Instruments Act,
1946,@
or
that for any special reason its form
or
purport calls
for
elucidation. The powers of the Committee include
the requiring
of
written
or
oral explanation from Government
Departments and the reporting
to
the House
of
this explanation;
before drawing the attention of the House to any instrument, the
Committee must give departments an opportunity
for
such explana-
tion. This order of reference gives the Committee no power
to
inquire into the merits
of
an
instrument.
Sir Gilbert Campion (then Clerk of the House of Commons) made
two proposals to the recent Select Committee on Procedure, which
would have greatly extended the powers of the Statutory Instru-
ments Committee, and which serve to show its present function.
The first proposal was that the latter Committee should examine
every statutory instrument which is subject to annulment and be
empowered to report on its merits, as an exercise
of
the powers
delegated. Sir Gilbert admitted that the merits and policy of the
parent Act should not be discussed, and 'recognised that the distinc-
tion might be difflcult to maintain.' None of the other witnesses
supported this proposal. The principal objections were two
:
first,
that
it
would divide the Select Committee on party lines and,
secondly, that it would add
so
greatly to the work
of
the Committee
as
to prevent
it
functioning
at
all. This latter objection was
particularly stressed by
Sir
Charles MacAndrew as Chairman, and
by Sir Cecil Carr as Assistant to the Statutory Instruments Com-
mittee.' The Government rejected the proposal on the ground that
8
401
R.C. Deb.
6
E.,
~016.
310-11.
4
400
H.C. Deb,
6
n.,
cob.
209-98.
8
Added
in
1946.
9
Added
in
1948.
f
Third
Re
rt
of
Belect Committee
on
Procadure
(Appendiz
to
Report,
per&.
30 (1)
),
8%.
189-1
of
1946
a
H.C.
189-1
of
1946,
pare.
4621.
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