From 'Parliamentary Powers' to Privatization: The Chequered History of Delegated Legislation in the Twentieth Century

Every modern statute about public law contains at least one section which gives somebody the power to make regulations about something...2. The practice of delegating this authority to make miniature Acts of Parliament is now so well established that it occasions no controversy, but there are occasional complaints about the inadequacy of the statutory safeguards against its abuse. ¹

A logical place to begin is with the foundation of administrative law – the delegation of powers by the legislature.... [T]he subject of legislative delegation, once the heart of administrative law teaching and scholarship, has steadily faded in importance.²

[W]e have ended up with freer markets and more rules.³

I Introduction

It is trite to observe that delegated legislation – these 'miniature Acts of Parliament,' in Willis's words – often has more impact on the lives of ordinary citizens than do most full-blown Acts of Parliament. Why, then, does the topic of delegated legislation now receive little serious attention from administrative lawyers? This is a complete reversal of the way things stood in the 1930s. In the first half of the twentieth century, as the second epigraph indicates, delegated legislation was a major issue, at times the major issue for administrative lawyers. This paper attempts to show how and why delegated legislation became sidelined and begins to explore the implications of that decentring.

II Hewart's hectoring

It has passed into the folklore of administrative law that, in 1929 , the Lord Chief Justice of England and Wales launched a blistering attack on what he called 'the pretensions and encroachments of bureaucracy.'⁴ Lord Hewart's book, provocatively entitled The New Despotism, issued a clarion call to lawyers around the common law world to rise up and protect the rule of law against the executive and the bureaucracy, which were taking liberties with the citizens' liberties. He saw this as a modern phenomenon.

Despotism, for Hewart, meant placing government departments (and the officials that inhabited them) 'above the Sovereignty of Parliament and beyond the jurisdiction of the Courts.'⁵ Lord Hewart was dismayed at the delegation by Parliament of legislative powers to government departments.⁶ Cabinet control of Parliament allowed bureaucrats and ministers to push legislation they had drafted through the Houses of Parliament, legislation which delegated to themselves broad (Hewart preferred the term 'arbitrary') powers to legislate as they thought fit.⁷ In this way, the devilishly clever bureaucrats used 'Parliamentary forms' to clothe themselves 'with despotic power,' and 'because the forms are Parliamentary' they could 'defy the Law Courts' by inserting provisions that limited or negated judicial review.⁸ Hewart saw this as a sinister conspiracy by officials and ministers to covertly sabotage the Constitution. His book was 'a naked attack on the bona fides of the Civil Service.'⁹

Lord Hewart put his finger on three related issues, only the first two of which he saw as problematic. The first was that Parliament had fallen under the spell of the government of the day and could be coerced to produce as legislation whatever Bills Cabinet proposed. The second was that individual ministers had either been captured by, or were hand-in-glove with, the bureaucrats, who were intent on arrogating power to themselves via Parliamentary delegation of legislative power. The third problem was what Hewart called solemnly 'the Sovereignty of Parliament,' which recognized no limits on what Parliament might do or delegate to others to do.

Lord Hewart wrote,¹⁰

Writers on the Constitution have for a long time taught that its two leading features are the Sovereignty of Parliament and the Rule of Law. To tamper with either of them was, it might be thought, a sufficiently serious undertaking. But how far more attractive to the ingenious and adventurous mind to employ the one to defeat the other, and to...