(a) Prior consultation of interests likely to be affected by proposed delegated Legislation:
From the citizen’s post of view the most beneficial safeguard against the dangers of the misuse of delegated Legislation is the development of a procedure to be followed by the delegates while formulating rules and regulations.
In England as in America the Legislature while delegating powers abstains from laying down elaborate procedure to be followed by the delegates. But certain acts do however provide for the consultation of interested bodies and sometimes of certain Advisory Committees which must be consulted before the formulation and application of rules and regulations.
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ADVERTISEMENTS:
This method has largely been developed by the administration independent of statutory requirements. The object is to ensure the participation of affected interests so as to avoid various possible hardships.
The method of consultation has the dual merits of providing an opportunity to the affected interests to present their own case and to enable the administration to have a first-hand idea of the problems and conditions of the field in which delegated legislation is being contemplated.
The method of consultation through correspondence has its own limits and therefore sometimes meetings and conferences are held for this purpose. The practice of consultation has regularity because of the existence of Advisory Committees of a more or less assumed permanent nature.
(b) Prior publicity of proposed rules and regulations:
Another method is antecedent publicity of statutory rules to inform those likely to be affected by the proposed rules and regulations so as to enable them to make representation for consideration of the rulemaking authority.
ADVERTISEMENTS:
The rules of Publication Act, 1893, S.I provided for the use of this method. The Act provided that notice of proposed ‘statutory rules’ be given and the representations of suggestions by interested bodies be considered and acted upon if proper. But the Statutory Instruments Act, 1946 omitted this practice in spite of the omission, the Committee on Ministers Powers 1932, emphasised the advantages of such a practice.
(c) Publication of Delegated Legislation:
Adequate publicity of delegated legislation is absolutely necessary to ensure that law may be ascertained with reasonable certainty by the affected persons. Further the rules and regulations should not come as a surprise and should not consequently bring hardships which would naturally result from such practice.
If the law is not known a person cannot regulate his affairs to avoid a conflict with them and to avoid losses. The importance of this fact is realised in all countries and legislative enactments provide for adequate publicity.
In England the Statutory Insurances Act, 1946 provides for the publicity of Statutory Instruments. All the statutory instruments are published by the Stationary Officer after being laid before the Parliament and contain the date on which they come into force. S. I (i) provide:
ADVERTISEMENTS:
Where by this Act or any Act passed after the commencement of this Act, power to make, confirm or approve orders, rules, regulations of other subordinate legislation is conferred on Her Majesty in Council or any Minister or the Crown then, if the power is expressed-
(i) In the case of a power conferred on Her Majesty, to be exercisable by Order-in-Council;
(ii) In the case of a power conferred on a Minister of the Crown, to be exercisable by statutory instruments; any document by which that power is exercised shall be known as a “statutory instrument” and the provisions of this Act shall apply thereto accordingly.
Accordingly, all rules, regulations and orders and other instruments made by the Sovereign, a Minister and a Government department of a legislative character fall within the category of “statutory instruments”.
But there is no obligation. It has been observed by Courts in some cases, to publish sub-delegated legislation as such instruments cannot be considered as a ‘statutory instrument’. (Black- phool Corporation v. Locker [1948] 1 K.B. 349; Falmouth Beat Construction Co. Ltd. v. Howell (1950) 2 A.B. 16). Judicial observation, however, must be considered with caution as in the aforesaid cases the question was not directly involved.
In case of contravention of a Statutory Instrument, it is a defence that it had not been issued by the Stationary Officer at the date of the alleged contravention.
Unless it is shown by the prosecution that reasonable steps have been taken or persons likely to be affected by it or of the persons charged, the defence may be upheld. (Section 3 (2) of the Statutory Instruments Act, 1945. Queen v. Sheer Metal Craft Ltd. [1954] 1 Q.B. 586).
It has been judicially declared that a statutory instrument unlike an Act of the Parliament did not take effects until it becomes known. These decisions have, however, given rise to a difficulty, because administration have sometimes relied upon immediate enforcement of certain type of rules, e.g., Price Schedules, Taxing measures and the like.