Delegata potestas non potest delegari

Last updated

Delegata potestas non potest delegari is a principle in constitutional and administrative law that means in Latin that "no delegated powers can be further delegated." Alternatively, it can be stated delegatus non potest delegare ("one to whom power is delegated cannot himself further delegate that power"). [1]

Contents

The principle is present in several jurisdictions such as that of the United States, the United Kingdom and India as well as in Catholic canon law.

Canada

The principle was first articulated in Canada in 1943, in an article in the Canadian Bar Review by John Willis. While it is acknowledged as "the seminal articulation of the law governing the subdelegation of statutory and discretionary powers" [1] and it is still often cited, [2] it has not achieved the rigid standing that was originally intended. The maxim has had some success as an operating principle in the restriction of delegation of legislative and judicial powers, but the demands of modern governmental regulatory practices have inhibited its application in the delegation of administrative powers. [1] Exceptions are rare and dependent on the statute conferring power. [3] [4]

India

In India, the principle is used in Indian Contract Act, 1872 Sec 190 which deals with agency. [5] It was first applied in A K ROY v. State Of Punjab, (1986) 4 SCC 326, that sub delegation of delegated power is ultra vires to the Enabling Act. [6] [7]

United States

In the United States, one of the earliest mentions of the principle occurred when it was cited by counsel for one of the litigants before the Supreme Court of Pennsylvania in 1794, in M'Intire v. Cunningham, 1 Yeates 363 (Pa. 1794). The summary of the case reports, "Mr. Wilson had given no power to Noarth to transact his business; but if he even had, it is a maxim, that delegata potestas non potest delegari." [8]

The maxim was first cited by the Supreme Court of the United States in United States v. Sav. Bank, 104 U.S. 728 (1881) in which the case summary reports that one of the litigants argued, "The duty imposed by statute on the commissioner cannot be delegated to a collector. Delegata potestas non potest delegari." [9]

Australia

In Australia the maxim has been largely superseded by Statute and common law. [10] [11] [12] There is a long line of authorities applying the Carltona principles [13] to Australia. [14] [15] [16] [17]

Though courts have found that where a stature expressly requires a personal action, such delegation is not possible. [18] [19] [20]

In Dooney [21] The High Court of Australia (Callinan J), [22] observed that "No permanent head of a department in the Public Service is expected to discharge personally all the duties which are performed in his name and for which he is accountable to the responsible Minister."

This case law has been backed up by legislation. Section 34AA and 34AAB of the federal governments Acts Interpretation Act 1901 clearly create a statutory power to delegate, contrary to the maxim. The federal legislation is echoed in some state legislation [23] [24] [25]

Section 34AB(1)(b) however prohibits a delegate to further delegate, consequently a Minister delegating to Secretary does not allow the Secretary to delegate to Astt Secretary.The vestiges of maxim have therefore been preserved by the Act.

Catholic canon law

Canon 137 of the 1983 Code of Canon Law states:

§ 1 Ordinary executive power can be delegated either for an individual case or for all cases, unless the law expressly provides otherwise.
§ 2 Executive power delegated by the Apostolic See can be subdelegated, either for an individual case or for all cases, unless the delegation was deliberately given to the individual alone, or unless subdelegation was expressly prohibited.
§ 3 Executive power delegated by another authority having ordinary power, if delegated for all cases, can be subdelegated only for individual cases; if delegated for a determinate act or acts, it cannot be subdelegated, except by the express grant of the person delegating.
§ 4 No subdelegated power can again be subdelegated, unless this was expressly granted by the person delegating.

See also

Related Research Articles

Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger rule as regards foreign courts is named state immunity.

A brocard is a legal maxim in Latin that is, in a strict sense, derived from traditional legal authorities, even from ancient Rome. The word is a variant of the Latinized name of Burchard of Worms, Bishop of Worms, Germany, who compiled 20 volumes of Ecclesiastical Rules.

Martin v. Hunter's Lessee, 14 U.S. 304 (1816), was a landmark United States Supreme Court case decided on March 20, 1816. It was the first case to assert ultimate Supreme Court authority over state courts in civil matters of federal law.

Canadian federalism involves the current nature and historical development of the federal system in Canada.

The doctrine of nondelegation is the theory that one branch of government must not authorize another entity to exercise the power or function which it is constitutionally authorized to exercise itself. It is explicit or implicit in all written constitutions that impose a strict structural separation of powers. It is usually applied in questions of constitutionally improper delegations of powers of any of the three branches of government to either of the other, to the administrative state, or to private entities. Although it is usually constitutional for executive officials to delegate executive powers to executive branch subordinates, there can also be improper delegations of powers within an executive branch.

<i>Ultra vires</i> Legal concept meaning powers are exceeded

Ultra vires is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is intra vires. Acts that are intra vires may equivalently be termed "valid", and those that are ultra vires termed "invalid".

United States federal administrative law encompasses statutes, common law, and directives issued by the Office of Information and Regulatory Affairs in the Executive Office of the President, that together define the extent of powers and responsibilities held by administrative agencies of the United States government. The executive, legislative, and judicial branches of the U.S. federal government cannot always directly perform their constitutional responsibilities. Specialized powers are therefore delegated to an agency, board, or commission. These administrative governmental bodies oversee and monitor activities in complex areas, such as commercial aviation, medical device manufacturing, and securities markets.

Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and a straightforward meaning. But in many cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. In common law jurisdictions, the judiciary may apply rules of statutory interpretation both to legislation enacted by the legislature and to delegated legislation such as administrative agency regulations.

Delegation (law)

In contract law and administrative law, delegation is the act of giving another person the responsibility of carrying out the performance agreed to in a contract. Three parties are concerned with this act - the party who had incurred the obligation to perform under the contract is called the delegator; the party who assumes the responsibility of performing this duty is called the delegatee; and the party to whom this performance is owed is called the obligee.

In the jurisprudence of the canon law of the Catholic Church, a dispensation is the exemption from the immediate obligation of law in certain cases. Its object is to modify the hardship often arising from the rigorous application of general laws to particular cases, and its essence is to preserve the law by suspending its operation in such cases.

Section 91(2) of the Constitution Act, 1867, also known as the trade and commerce power, grants the Parliament of Canada the authority to legislate on:

2. The Regulation of Trade and Commerce.

Commissary Apostolic

A Commissary Apostolic is Commissary who has been appointed by the pope, hence commissary Apostolic.

The Carltona doctrine expresses the idea that, in United Kingdom law, the acts of government departmental officials are synonymous with the actions of the minister in charge of that department. The point was established in Carltona Ltd v Commissioners of Works.

Judicial review in English law is a part of UK constitutional law that enables people to challenge the exercise of power, often by a public body. A person who feels that an exercise of power is unlawful may apply to the Administrative Court for a court to decide whether a decision followed the law. If the court finds the decision unlawful it may have it set aside (quashed) and possibly award damages. A court may impose an injunction upon the public body.

<i>Council of Civil Service Unions v Minister for the Civil Service</i> United Kingdom constitutional law

Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9, or the GCHQ case, is a United Kingdom constitutional law and UK labour law case that held the royal prerogative was subject to judicial review.

<i>R (Jackson) v Attorney General</i>

R (Jackson) v Attorney General [2005] UKHL 56 is a House of Lords case noted for containing obiter comments by the Judiciary acting in their official capacity suggesting that there may be limits to parliamentary sovereignty, the orthodox position being that it is unlimited in the United Kingdom.

The purposive approach is an approach to statutory and constitutional interpretation under which common law courts interpret an enactment within the context of the law's purpose.

In Canada, the term quasi-constitutional is used for laws which remain paramount even when subsequent statutes, which contradict them, are enacted by the same legislature. This is the reverse of the normal practice, under which newer laws trump any contradictory provisions in any older statute.

Fettering of discretion by a public authority is one of the grounds of judicial review in Singapore administrative law. It is regarded as a form of illegality. An applicant may challenge a decision by an authority on the basis that it has either rigidly adhered to a policy it has formulated, or has wrongfully delegated the exercise of its statutory powers to another body. If the High Court finds that a decision-maker has fettered its discretion, it may hold the decision to be ultra vires – beyond the decision-maker's powers – and grant the applicant a suitable remedy such as a quashing order to invalidate the decision.

South African administrative law is the branch of public law in that country which regulates the legal relations of public authorities, whether with private individuals and organisations or with other public authorities, or better say, in present-day South Africa, which regulates "the activities of bodies that exercise public powers or perform public functions, irrespective of whether those bodies are public authorities in a strict sense." According to the Constitutional Court, administrative law is "an incident of the separation of powers under which the courts regulate and control the exercise of public power by the other branches of government."

References

  1. 1 2 3 Mullan, D.J. (2001) Essentials of Canadian Law: Administrative Law. Toronto: Irwin Law. ISBN   1-55221-009-X. p. 368
  2. Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12
  3. Mullan, D.J. (2001) Essentials of Canadian Law: Administrative Law. Toronto: Irwin Law. ISBN   1-55221-009-X. p. 370
  4. Ramawad v. Canada (Minister of manpower and Immigration) 2 S.C.R. 375
  5. "An agent cannot further delegate:Section 190 of the Indian Contract Act - Advocatespedia". advocatespedia.com. Retrieved 2020-12-02.
  6. (1986) 4 SCC 326
  7. manupatra. "In Re: The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C States (Laws) Act, 1950". Manupatra.Cite journal requires |journal= (help)
  8. M'Intire v. Cunningham, 1 Yeates 363 (Pa. 1794).
  9. United States v. Sav. Bank , 104 U.S. 728 (1881); see also, J. W. Hampton, Jr., & Co. v. United States Archived 2011-07-21 at the Wayback Machine , 276 U.S. 394, 405-406 (U.S. 1928).
  10. M Aronson and M Groves, Judicial Review of Administrative Action (Thomson Lawbook Co, 2013) at 6.20.
  11. D C Pearce and S Argument, Delegated Legislation in Australia (Lexis Nexis, 2012) at 2.31.
  12. R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, (3rd ed, 2012.)
  13. Carltona Ltd v Commissioners of Works [1943] 2 All ER 560.
  14. O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 11 and 18.
  15. DPP v His Honor Judge Fricke [1993] 1 VR 361.
  16. Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 37-38.
  17. Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld) [1979] HCA 50 per Gibbs J. at 22.
  18. Kutlu v Director of professional Services Review (2011)197 FCR 177.
  19. see also Din v Minister for Immigration and Multicultural Affairs(1997) 147 ALR 673 at 682.
  20. Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld) [1979] HCA 50 per Gibbs J. at 22.
  21. Dooney v Henry (2000) 174 ALR 41.
  22. Matthew Groves, H. P. Lee, Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007)p262.
  23. See for example The Interpretation Act 1987 of New South Wales section 48.
  24. Acts Interpretation Act 1915 (SA).
  25. Interpretation Act 1918 (WA).