This blog describes how constitutional provisions in five countries limit the use of delegated legislation. Delegated legislation in the UK is usually described as legislation that is created as a result of Parliament giving away rule-making powers (normally to members of the executive). This blog is not about what the limits on these powers should be. Instead, it discusses how constitutions abroad address delegated legislation. It highlights constitutional provisions that are either used to limit or direct the giving away of legislative powers.
Limits are ordinary
Codified constitutions regularly determine the relationship between different branches of the state as well as their main functions. By virtue of being democratically elected and accountable, legislatures have the legitimacy to lay down binding rules in the form of legislation. In turn, many constitutions then address whether the legislature can delegate that power – both to the executive, or in the context of federalism, to state legislatures. Consequently, constitutional provisions that explicitly limit the delegation of legislative power are common.
The extent to which different constitutions put limits on giving away legislative power differ, though. Provisions which establish limits on the conferral of legislative power are often debated – especially in the US – and can extend to a non-delegation doctrine (though the effectiveness of the US doctrine has often been criticised). Rather than looking at these doctrines, this blog focuses on describing the constitutional provisions that anchor them.
Types of limits
In the US and Ireland, the relevant constitutional provisions focus on the power of the legislature. These provisions are skeletal but have been given flesh by judicial interpretation – and so used to formulate a non-delegation doctrine. Article 1.1 of the US Constitution states: “all legislative power… shall be vested in a Congress” and alongside article 1.8 forms the basis of limits on delegation (although the original strict doctrine has, arguably, been replaced by the softer “Major Questions” doctrine). [i] [ii] In a similar way, article 15.2.1 of the Irish Constitution states, “the sole and exclusive power of making laws” is vested in the Oireachtas and “no other legislative authority”. These provisions have been interpreted to require an enabling act to guide the rule maker by outlining the policies and principles that are to be given effect.[iii] In short, even vague constitutional provisions on legislative functions can be used as hooks for creating limits.
By contrast, in at least six European countries, “constitutional limits” on delegation are more direct. In addition to describing the legislative function generally, these constitutions have article which directly constrain what the equivalent to delegated legislation can be used for, the lifespan of delegated powers, and what topics they can address.
Before looking at these provisions, it is worth explaining what is meant by the “equivalent” to UK delegated legislation. These share the essential features of delegated legislation: they are legally binding rules (law) that can only normally be created following or based on a delegation of power. They seem to include statutory instruments in Germany; “delegated legislative decrees” (amongst other forms) in Italy, Spain, Portugal and France and certain types of regulations in the Netherlands.
All six countries have constitutional provisions that indicate how delegated legislation might be used. Namely: articles 161(d), 164 and 165 of the Portuguese Constitution (2005); articles 34, 37, 37-1, and 38 of the (French) Constitution of 1958; articles 82 of the Spanish Constitution (1978); article 76 of the Constitution of the Italian Republic; and article 89(2) of the Constitution of the Netherlands. These articles address the different spheres in which delegated legislation operates, restricting lifespan, potential and the topics it might address.
Three examples of such provisions are worth describing. In all three, requirements are imposed on the enabling act and not just on the delegated legislation itself. These examples differ from the basis for the US and Irish non-delegation doctrines in that the limits imposed on the enabling act and delegated legislation are explicit.
Germany
In Germany, limits address what should be in the enabling act (and by extension, what a statutory instrument can be used for). Article 80(1) of the Basic Law limits the reach of statutory instruments. It states that the “content, purpose, and scope of the authority” (Inhalt, Zweck und Ausmaß) of every SI must be defined by an act. This provision seems to require acts (“the law”) to determine the substance of a policy being implemented by delegated legislation. In theory, on its own, this could be used to prevent delegated legislation where “content and purpose” are not clarified in advance.
The Netherlands
In a second example, in the Netherlands a constitutional provision restricts delegated legislation from being used to create one type of measure. Article 89(2)) of the Dutch Constitution states that regulations cannot be used to create criminal penalties but may supplement criminal offences and coercive measures (that are already established by statute).[iv] Again, the aim is to prevent regulations from being used to create a measure that is not clarified by primary legislation. However, it should be noted that this example is based in a specific context: regulations, which can neither impose one type of measure nor determine its enforcement.
Portugal
Last are articles 161(d), 164 and 165 of the Portuguese Constitution. This example is more complicated because in Portugal, France, Spain and Italy there are limits not just on how delegated legislation can be used, but on its lifespan and on the topics it can address. Art.161(d) allows delegations of legislative power on matters where the government has competence. In other words, the Portuguese Assembly is allowed to confer upon the Government “authorisations to legislate” (creating delegated legislative decrees). But there are some constraints on how these authorisations are used. The topics that can be addressed by delegated power are framed in terms of legislative competences. Exclusively legislative competences are listed by Article 164 of the constitution and include the regimes “governing security forces” and “governing national symbols”. But there are other issues – like those listed under article 165 – which are partially excluded. Topics like “legal status and capacity”, “rights, freedoms and guarantees” and the basis of the social security system are normally within the domain of the Assembly alone – unless the Assembly moves the goal posts through delegating occasional powers (“authorisations”) to make rules on this area.
There are constraints, though, on how these powers are to be used. Article 165(2). requires the enabling act to “define the object, purpose, extent and duration” of the delegation. Article 165(3) states that, normally, delegations on partially exclusive areas can only be used once. Article 165(4) suggests that these delegated powers expire when the government changes or after every legislative session.
The Portuguese example shows that limits can be imposed on the lifespan of delegated powers, in addition to the frequency of their use. Under this example, delegated legislative decrees cannot normally be used to address certain topics which are either partially or entirely reserved as the domain of the Assembly.
Summary
While it is routine for constitutional provisions to be used as constraints in the delegation of power, how these constraints develop may differ. Sometimes, these are clearly worded and set out by the constitution, and at other times norms are formulated from a broader base by institutions. In the US and Ireland, these limits are imposed by the courts, based on vague provisions. In France, Portugal, Spain, Italy and the Netherlands, these limits are directly imposed by constitutional provisions. These limits speak to the different aspects of delegated legislation. In Germany, these limits seem to address how it may be used. In the Netherlands, regulations are precluded from addressing certain measures. And finally, in Portugal, the subject and lifespan of delegated powers are limited: they are usually supposed to be used for policies within the executive’s domain and cannot be reused.
This brief survey of constitutional provisions provides no indication of how effective limits may be in practice. But it does show that interpretation can serve the same purpose as clear wording; that differing methods can achieve similar ends.
[i] Art.1.8 gives Congress “the power to make all laws which shall be necessary and proper for carrying into Execution the Foregoing powers … vested by Constitution”. “Necessary” is seen as pro delegation, while “proper” is seen as constraining delegation. For original non-delegation doctrine, Wayman v. Southard, 23 U.S. 10 Wheat. 1 1 (1825) limits on conferring “strictly and exclusively legislative” powers ; and JW Hampton Jr & Co v United States (1928) at [401] for the requirement that Congress provides “intelligent principles”. Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 645.
[ii] The major questions doctrine was recently applied in West Virginia v. Environmental Protection Agency, 597 US (2022); which was a challenge to the Environmental Protection Agency’s use of powers in the Clean Air Act to devise emissions caps. Justice John Roberts’s opinion on behalf of the majority was that Environmental Protection Agency did not have the authority to limit emissions through “generation shifting to cleaner sources” (beyond the fence line) as this fell within the issue of a “major question”.
[iii] Cityview Press and Anor v An Chomhairle Oiliúna and Ors [1980] 1 IR, Justice O’Higgins C.J, pp.389-399. “the test is whether that which is challenged as an unauthorised delegation … is more than a mere giving effect to principles and policies which are contained in the statute itself.”
[iv] Further qualified by Article 89(4)).