Delegata potestas non potest delegari
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]
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. It was first applied in A K Roy v State of Punjab (1986) 4 SCC 326, which held that sub-delegation of delegated power is ultra vires to the Enabling Act.[5]
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."[6]
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."[7]
Australia
In Australia the maxim has been largely superseded by statute and common law.[8][9][10] There is a long line of authorities applying the Carltona principles[11] to Australia.[12][13][14][15]
Though courts have found that where a statute expressly requires a personal action, such delegation is not possible.[16][17][18]
In Dooney[19] the High Court of Australia (Callinan J),[20] 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 government's Acts Interpretation Act 1901 clearly create a statutory power to delegate, contrary to the maxim. The federal legislation is echoed in some state legislation.[21]
Section 34AB(1)(b) however prohibits a delegate to further delegate; consequently a Minister delegating to a Secretary does not allow the Secretary to delegate to an Assistant Secretary. The vestiges of maxim have therefore been preserved by the Act.
United Kingdom
In the United Kingdom, the concept has been used to question the validity of the Parliament Act 1949, based on that fact that the Act expanded the power of the House of Commons but was passed solely by that House (under the terms of the Parliament Act 1911) without the consent of the House of Lords.[22]
Catholic canon law
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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
References
- Mullan, D. J. (2001). Essentials of Canadian Law: Administrative Law. Toronto: Irwin Law. p. 368. ISBN 1-55221-009-X.
- Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12
- Mullan, D.J. (2001) Essentials of Canadian Law: Administrative Law. Toronto: Irwin Law. ISBN 1-55221-009-X. p. 370
- Ramawad v. Canada (Minister of manpower and Immigration) 2 S.C.R. 375
- "In Re: The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C States (Laws) Act, 1950" (Document). Manupatra.
- M'Intire v. Cunningham, 1 Yeates 363 (Pa. 1794).
- 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).
- M Aronson and M Groves, Judicial Review of Administrative Action (Thomson Lawbook Co, 2013) at 6.20.
- D. C. Pearce and S. Argument, Delegated Legislation in Australia (Lexis Nexis, 2012) at 2.31.
- R. Creyke & J. McMillan, Control of Government Action: Text, Cases and Commentary (3rd ed, 2012.)
- Carltona Ltd v Commissioners of Works [1943] 2 All ER 560.
- O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 11 and 18.
- DPP v His Honour Judge Fricke [1993] 1 VR 361.
- Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 37–38.
- Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld) [1979] HCA 50 per Gibbs J. at 22.
- Kutlu v Director of professional Services Review (2011)197 FCR 177.
- Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673 at 682.
- Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld) [1979] HCA 50 per Gibbs J. at 22.
- Dooney v Henry (2000) 174 ALR 41.
- Matthew Groves, H. P. Lee, Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) p. 262.
- See for example The Interpretation Act 1987 of New South Wales section 48; Acts Interpretation Act 1915 (SA); Interpretation Act 1918 (WA).
- "Parliament Act 1949". UK Parliament. Retrieved 16 May 2023.