Article On Delegated Legislation in USA and UK

Delegated Legislation: United States and United Kingdom Author(s): Michael Asimow Source: Oxford Journal of Legal Studies,
Vol. 3, No. 2 (Summer, 1983), pp. 253-276 Published by: Oxford University Press Stable URL: http://www.jstor.org/stable/764236 Accessed: 22/01/2010 12:42
Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=oup. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Oxford University Press is collaborating with JSTOR to digitize, preserve and extend access to Oxford Journal of Legal Studies.
http://www.jstor.org
DELEGATED LEGISLATION: UNITED STATES AND UNITED KINGDOM

MICHAEL ASIMOW*
A comparison of delegated legislation' in Britain and America reveals a striking difference. In the USA, the substance of regulations and the procedure by which they are made present issues which generate enormous controversy in political, judicial, and academic circles. In Britain, nearly everyone seems satisfied with (and hardly anyone seems interested in) procedural and substantive aspects of delegated legislation. This paper speculates about why two developed nations should differ so sharply in their attitude toward an essential technique of modern government. words 'rule' and 'regulation' are synonymous and these terms cover not only delegated legislation but also other pronouncements which have general applicability and future effect but which lack the force of law.2 The process of promulgating them is called 'rulemaking'.3 In Britain, contemporary usage often differentiates between 'rules' which are procedural and 'regulations' which are substantive. Neither term refers to pronouncements of general applicability such as circulars, guidelines, or extra-statutory concessions.4 'Statutory instruments' are the mechanism for making most delegated legislation.5 This article considers mainly substantive delegated legislation but, in American fashion, will use the terms 'rule' and 'regulation' interchangeably. For the most part, it discusses the American experience at the federal rather than the state level, although developments in many states parallel the federal experience.
*Profcssor of Law, University of California, Los Angeles Law School. My late colleague, Donald Hagman, provided great assistance in the preparation of this article. I would also like to thank the Institute of Advanced Legal Studies, London, for the use of its facilities. I 'Primary legislation' (statutes) frequently empower government officials to fill gaps by adopting 'delegated legislation', sometimes called 'subordinate legislation', 'bye-laws', or 'regulations'.Like primary legislation, delegated legislation usually has general applicability, future effect and the force of law. 2 Such pronouncementsare often referredto herein as 'non-delegated subordinatelegislation'. 3 Americans often refer to delegated legislation as 'legislative' or 'substantive' rules. A 'rule' is defined by the Administrative Procedure Act as a statement by government (other than Congress or courts) of general applicability and fuitureeffect designed to implement, interpret or prescribe law or policy. 'Rulemaking' is agency process for formulating, amending or repealing a rule. 5 United States Code Annotated ss 551(4) and (5). The Administrative Procedure Act will hereinafterbe referredto as the APA and will omit the referenceto USCA. 4 See H. W. R. Wade, AdmintistrativeLaw (4th ed 1977) 704-05, (hereinafter cited as 'Wade'); C. K. Allen, Law and Orders (I965) Chap 4, (hereinaftercited as 'Allen'). 5 Delegated legislation can also be expressed in Orders in Council, bye-laws, and directions, among others. Wade 50, 704-05; Griffith and Street, Principles of Administrative Law (I963) 32-37, (hereinaftercited as 'Griffith& Street'). 253
Oxford Journal of Legal Studies Vol. 3, No. 2
254
DELEGATED LEGISLATION
I. RULEMAKING IN THE USA
This section is intended to provide the British reader with a survey of contemporary American law and practice concerning rulemaking as well as to convey a sense of the political turmoilwhich swirls aroundthe subject. (a) An overview of rules and rulemakingin Americangovernment It often seems that the American reaction to a problem is to enact a scheme to regulate the private sector; such 'regulation'usually entails the promulgationby a governmentagency6of 'regulations'to fill in gaps in the regulatorystatute. Considerthese few examplesof federalregulations: I. Air and water pollutionrules furnish detailed prescriptionsof the permissible emissions of plants in most industries. 2. Worker safety rules spell out requirements,often very costly, in painstaking detail. 3. Cable television rules, until recently, determinedthe terms of the competitive strugglebetween free over-the-airtelevision, pay television, and cable. 4. Trade regulation rules restructurethe marketing and competitive practices of entire industries. 5. Automobile safety rules establish precise requirements for seatbelts, bumpers,petrol tanks, etc. Government by expert regulatorsbecame fashionable during the New Deal of the 1930s, when Congress created new agencies to regulate specific sectors of the economy, such as corporate securities, labour relations, and various forms of transportation and communication. The regulatory technique was called upon anew when concerns about the dangers of technology, environmentaldegradation, and consumer protection were translated into law during the i96os and 1970s. Faced with complex and intractable problems, legislators created new agencies, commanded them to achieve specific results by specific dates, and armed them with a combinationof regulatory,adjudicatory,and enforcementpowers. The new agencies, along with re-invigoratedolder agencies, generated a huge number of highly controversial,costly, and complex regulations. This regulatory deluge attractedattention to the subject in legal and economic literatureas well as in the popular press.7 A vast number of court decisions have focused on delineation of proceduralrequirementsfor making rules and clarificationof the scope of the reviewing court's power to review the rules. Rulemakinghas claimed a great deal of legislative and executive attention at federaland state levels and the AdministrativeConferenceof the United States (analogousto the British Council on Tribunals) has devoted substantial resources to the subject. It is often claimed that agencies impose burdensomerequirementswithout adequateconsiderationof
6 An 'agency', in American parlance, is a unit of government (other than Congress or the courts). APA s 551(I). Most agencies form part of the executive branch of government and are thus equivalent to a British department, but several are independent of executive control (i.e. the President cannot remove the members without cause). 7 One bi-monthlyjournal, aptly called Regulation, is devoted exclusively to the subject.
MICHAEL
ASIMOW
255
efficiencyor cost, that they suffer from tunnel vision or have been capturedby the industries they regulate, or that public participation in the rulemakingprocess is insufficientor a meaninglessformality.8 The early i98os have seen a sharp reaction against regulation; both political parties espouse deregulation, and significant deregulation of airlines, trucking, railroads,radio and television, stock brokerage,energy pricing, business practices of professionals, and financial institutions has actually occurred.After describing rulemakingproceduresand judicial review of rules, this section will return to the reaction against regulation and identify some of the devices employed to achieve deregulation. (b) Rulemakingprocedure The enactment of the Administrative Procedure Act (APA) in 1946 was the landmarkevent in the history of Americanadministrativelaw. This statute struck a compromise between advocates and opponents of procedural formality, one which has proved resilient and enduring.The APA grew out of a study in 1941 by the Attorney-General'sCommittee on Administrative Procedure9(in much the same way that the Tribunals and Inquiries Act 1958 was inspiredby the reportof the Franks Committee). Building upon existing practices, the Attorney-General's Committee recommended an informal but mandatory rulemaking system which ultimately became Section 4 of the APA.'1 It seems that Congress contemplated an undemanding system whereby an agency could supplement its own investigation, receive public input, sketch the purpose of a rule, and publish it before the effective date." More specifically, the APA requires an agency to give general notice of the terms or substance of a proposed rule.12Interested persons are invited to submit written data, views, or arguments,with or without an oral presentation.The rule must incorporate a 'concise general statement' of its basis and purpose and be published not less than thirty days prior to its effective date.13No proceduresare required to adopt non-delegated subordinate legislation'4 or procedural rules;
8 See Ackerman and Hassler, 'Beyond the New Deal: Coal and the Clean Air Act' 89 Yale LJ 1466 (g980), a brilliant case study of a rule suffering most of these defects. The article provides a stimulating intellectual history of the subject. For a sophisticated account of government failure to protect collective interests, see Stewart, 'The Reformation of American Administrative Law' 88 Harv L Rev 1667, i68 -8 (1975). 9 'AdministrativeProcedurein Government Agencies', S Doc 8, 77th Cong ist Sess (I941). o1 Report, supra n 9, 97-115. I See APA Legislative H-istory,S Doc 248, 79th Cong 2d Sess (1946) 17-2I, 304, 358-9. 12 APA s 553(b). Notice is published in the Federal Register, a daily document with a large national circulation, and is generally mailed to anyone whom the agency knows to be interested in the subject. I3 APA s 553(c), (d). In a few instances, a statute other than the APA requires an on-the-record hearing prior to adoption of a rule. In such cases, the APA sets forth an abbreviated trial-type procedurewhich is referredto as 'formalrulemaking'.APA ss 553(c), 557(b). 14 This term is defined in n 2, supra.
256
moreover, the undemanding steps required to adopt legislative rules can be omitted if they would be impracticable,unnecessary, or contrary to the public interest."5 However, non-delegatedsubordinatelegislation of general applicability must be publishedin the FederalRegister after it is adopted.'6 From these rather sparse raw materials, the courts have spun a web of strict and exacting requirements. Most regulatory cases have been decided by the United States Court of Appeals for the District of Columbia,which reviews far more administrative rules and orders than any other federal court. The activist J Skelly Wright, David Bazelon, the late Harold judges of this bench, particularly Ieventhal, and Carl McGowan, have profoundly restructured rulemaking These decisions put proceduresand have redefinedthe role of reviewing courts.17 flesh on the bare bones of the APA. For example, they require an agency's notice of proposed rulemaking to fairly present the substance of the final rule.18In addition, the notice of proposed rulemaking must disclose an agency's methodology and supportingstudies in order to allow the public an opportunityto criticize this data.'9 If additionalfactual materialsor studies come to light during The statement of basis and the rulemakingprocess, these must be disclosed also.20 of the must the final rule purpose explain agency's reasoning on key points, to material outsiders and comments explain alternativeschosen and respond by The to the notice-and-comment various requirements are rejected.2' exceptions construed.22 narrowly Some decisions imposed additionalproceduralsteps to facilitatejudicial review and assure adequate ventilation of the subject matter.23These holdings, which
15 APA s 553(b)(A), (B), (d)(I), (2), (3). In addition, APA s 553 is inapplicable to a military or
i6
17
I8
19
20
2I 22
23
foreign affairs function or a matter relating to agency management or personnel or to public property,loans, grants, benefits, or contracts. APA s 553(a). APA s 553(a)(i)(D). Non-delegated subordinate legislation of particularapplicability (as well as final opinions in adjudicationand administrative staff manuals) must be made availablefor public inspection and copying and indexed. APA s 552(a)(2). Their role reminds an observer of that played by Lord Denning MR in the creative development of British administrative law. See Denning, The Discipline of Law (1979) 61-io9. The kinship is clearly acknowledged in Judge Wright's review of Lord Denning's book. Wright, 'Law and the Logic of Experience: Reflections on Denning, Devlin, and Judicial Innovation in the British Context' 33 Stan L Rev 179 (1980). See WIagner Electric Corp v Volpe466 F 2d IO13(3rd Cir 1972); Rochvarg, 'Adequacyof Notice of Rulemaking under the Federal Administrative Procedure Act' 3I Am UL Rev i (I981); K. Davis, Administrative Law Treatise (1978) s 6.25 (hereinafterreferredto as 'Davis Treatise'). Portland CementAssoc v Ruckelshaus 486 F 2d 375 (DC Cir 1973), cert den 417 US 921 (I974). United States v Nova Scotia Food Products Corp 568 F 2d 240 (2d Cir 1977). Portland Cement Assoc v Ruckelshaus, supra n I9; National Lime Assn v EPA 627 F 2d 416 (DC Cir I980). See, e.g. Chamber of Commerceof US v OSHA 636 F 2d 464 (DC Cir 1980) (interpretive rules and policy statements); United States Steel Corp v EPA 595 F 2d 207 (5th Cir 1979) (good cause exemption). Sec generally Davis Treatise s 6.29; Asimow, 'Public Participation in the Adoption of Interpretive Rules and Policy Statements', 75 Michigan L Rev 521 (1977). See, e.g. Mobil Oil Co v FPC 483 F 2d 1238 (DC Cir 1973).
MICHAEL
ASIMOW
257
were not moored to the APA, requiredagencies to engage in trial-typeprocedures such as oral argumentor cross-examination.The Supreme Court called a halt to this developmentin the landmarkcase of VermontYankeeNuclear Power Corpv Natural ResourcesDefense Council,24 which castigated the Court of Appeals for judicial over-reaching. VermontYankeeholds that a court must not substitute its judgment about appropriateproceduresfor that of an agency so long as the APA requirementsare satisfied. Vermont Yankee casts doubt upon several procedural innovations hatched by the DC Court of Appeals. For example, some panels of that court have held that outsiders cannot make ex parte presentationsto agency and requirednotice-and-commentprocedure decision-makersduring rulemaking25 of subordinate to adoption non-delegated legislation having a substantial prior the public.26 impact upon (c) Judicial review of rules At the same time as they enriched rulemaking procedures, the federal courts fundamentallyaltered the judicial review process. The judicial review revolution began when doctrines regarding ripeness were relaxed so as to permit judicial review of most rules long before they were actually applied in practice.27The courts also made it clear that there existed a presumption of reviewability of administrative action; to preclude review, Congress must do so by explicit The next step was to liberalizethe law of standing to sue, so statutory language.28 that those suffering even insignificant competitive, consumer or environmental injuries might challenge rules or other agency action.29Other barriersto review, were such as those relating to sovereign immunity30or amount in controversy,31 also swept away. Even more important than removal of these formal barriers is the intensified For many years, courts reviewing rules scrutiny to which rules are subjected.32 and other discretionary agency action have asked whether the determination in
24 435 UIS519 (1978). See Scalia, 'Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court' 1978 Sup Ct Rev 345; Beatson 'A British View of Vermont Yankee' 55 Tulane L Rev 435 (I981). 25 Home Box Office, Inc v FCC 567 F 2d 9 (DC Cir) cert den 434 US 829 (I977). 26 See Pickus v United States Bd of Parole 507 F 2d 1107 (DC Cir 1974). 27 Abbott Laboratoriesv Gardner 387 US 136 (1967). 28 Ibid. 29 Association of Data Processing Service Organizations v Camp 397 US 150 (1970). 30 APA s 702, amended by PL 94-574. 31 28 USC s 133i(a), as amended by PL 94-574. 32 Traditionally, the presence of facts which sustain a rule was presumed. Judicial review of rules consisted of rubber-stamp approval (absent a strong claim of procedural invalidity, use of erroneous factors, or ultra vires). See, e.g. Pacific States Box and Basket Co v White 296 US 176, 186 (935).
258
Influencedby the question was 'arbitrary,capricious or an abuse of discretion'.33 Overton Park decision,34the federal courts forged this traditionallyundemanding standard into an instrument for conducting searchingreview of the agency's fact finding and policy choices. In addition to ascertainingthat proper procedurewas used, that a rule is intra vires and satisfies constitutionalconstraints, and that only appropriatefactors were considered,the courts assess whether an agency'sfactual conclusions are supportedby the rulemakingrecord and whether it engaged in an orderly process of reasoning and policy-makingfrom that record.They requirean agency to articulate policy choices and explain why it rejected other available options.35 Increasingly, the agency-not the objectors-bears the burden of persuasion of the rationality of the rule.36Only the explanation tendered in an agency's statement of basis and purpose can be consideredby the reviewing court, not a post hoc rationalizationprovidedby counsel.37 This process now consumes substantialjudicialresourcesand requiresappellate judges to grapple with immense rulemaking records and a universe of esoteric scientific, technological, and economic problems.38Observers differ on whether courts have the resources or ability effectively to exercise such close scrutiny,but
33 APA s 706(2)(A). Some statutes require reviewing courts to employ the presumably more exacting level of scrutiny accorded to factual determinations made after formal on-the-record proceedings: is the action supported by 'substantial evidence on the whole record?' APA s 706(2)(E). This standard seems unsuited to judicial review of findings of legislative fact and determinations of policy made after informalrulemakingproceedings. It remains unclear whether the use of 'substantial evidence' as opposed to the 'arbitrary,capricious' standardrequirescourts to insist on greater exclusivity of the rulemaking record and to exercise even more intense scrutiny of the agency's reasoning process. See Environmental Defense Fund v EPA 636 F 2d 1277 (DC Cir 1980) (substantial evidence means more rigorous review and stricter I267, standardsfor record exclusivity). 34 Citizens to Preserve Overton Park v Volpe 401 US 402 (1971), reviewed an informal decision to appropriate funds to build a highway through an urban park despite a statute allowing such construction only if the park route was the sole 'feasible and prudent alternative'. The Supreme Court held the decision was reviewable to examine whether it was intra vires, procedurally correct, based on considerationof the relevant factors and 'whether there has been a clear errorof judgment ... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.' Ibid., 416. 35 State Farm Mutual Auto Ins Co v DOT 680 F 2d (DC Cir I982) (rescission of proposed rule arbitrarybecause of failure to consider less extreme alternatives);Ethyl Corp v EPA 54I F 2d i, 33--37 (DC Cir 1976), cert den 426 US 941 (1976); DeLong, 'Informal Rulemaking and the Integration of Law and Policy' 65 Virginia L Rev 257, 301-09 (1979). 36 See Gifford, 'Rulemaking and Rulemaking Review: Struggling Toward a New Paradigm' 32 Admin L Rev 577, 592-94, 613-17 (I980). 37 See Citizens to Preserve Overton Park v Volpe, supra n 34; Camp v Pitts 411 US 138 (1973). 38 See, e.g. Sierra Club v Costle 657 F 2d 298, 410 (DC Cir I98I), which upholds a regulation concerning desulphurizationof emissions from coal burning power plants. The decision runs 132 pages in length.
MICHAEL ASIMOW
259
the prospect that it will occur undoubtedlyhas promptedagencies to take pains to build complete records andjustify the rationalityof their rules.39 (d) Executive and legislative innovations The President, acting throughhis staff and the Office of Managementand Budget, has taken a number of importantinitiatives in seizing control of rulemakingfrom the agencies. Immediatelyupon taking office, the Reagan administrationfroze the adoption of proposed major regulations and ultimately killed most of them. The President also appointed a group of administratorswho were known to be hostile to the regulatoryschemes for which they would be responsible. In addition, building upon proceduresfirst implemented by President Carter, the new administrationrequired rulemakingagencies in the executive branch to prepare 'regulatory analyses' of 'major' proposed rules.40These analyses must contain detailed cost-benefit comparisons.41Agencies must review and prepare regulatoryanalyses of existing rules as well. Regulatoryanalyses are monitoredby the Officeof Managementand Budget which now scrutinizesproposedmajorrules both before and after they are announcedto the public. The subject of rulemaking reform has been of intense interest to Congress which is likely to enact a comprehensivebill in the near future. The Senate has already passed such a bill by unanimousvote.42This legislation would codify the various requirementsimposed by the courts:43it requires advance notice of the factual underpinningsof a proposed rule, narrows the exemptions from noticeand-comment procedures, and requires agencies to give an opportunity for oral presentations before adoption of a majorrule. Indeed, in a provision which many
39 One thoughtful observer, the Deputy General Counsel of the EnvironmentalProtection Agency, contends that rigorous judicial review of substance and procedure has markedly improved the quality of rulemaking at EPA. Since judicial review may well entail a more probing review than any occurring at the agency level, the staff realizes that it cannot take shortcuts. See Pederson, 'Formal Records and Informal Rulemaking' 85 Yale L Rev 38, 59-60 (1975); Stewart, 'The Development of Administrative and Quasi-Constitutional Law in Judicial Review of EnvironmentalDecisionmaking' 62 Iowa L Rev 713, 731 n 89 (1977). 40 The analogue for the regulatory analysis is the detailed environmental impact statement which federal agencies must file before taking major action significantly affecting the quality of the human environment. National EnvironmentalPolicy Act, 42 USC s 4332(2)(C). Many states have similar requirements. 41 Executive Order I2,29I, 46 Fed Reg 13,193 (I981). See Rosenberg, 'Beyond the Limits of Executive Power: Presidential Control of Agency Rulemaking under Exec. Order 12,291' 80 Michigan L Rev 193 (1981). Because of doubts about presidential power, however, 'independent' agencies are not subject to the Executive Order requirements. See n 6, supra. In addition to routinized review of all major rules, the executive occasionally intervenes in specific rulemaking proceedings, often by off-the-record contacts with decision-makers, urging less costly alternatives. See Sierra Club v Costle, supra n 38, which upholds a rule despite such contacts; Verkuil, 'Jawboning Administrative Agencies; Ex Parte Contacts by the White House' 80 Coltum L Rev 943 (1980). 42 S Bill 1o8o, 97th Cong ist Sess, enacted 24 March 1982.
43 See text at ns I8-22, supra.
260
observers think would be most unwise, it even requires an opportunityfor crossexamination of agency employees if other proceduresare found to be inadequate for resolution of factual issues. Under the Senate bill, the final rule must contain a detailed explanationof its contents, includingresponses to significantissues raised by commentatorsand an explanationof why alternativesto the rule were rejected. All factual material on which the agency relied must be placed in the file and this file is the exclusive record for purposes of judicial review. In addition, the Senate bill would codify the regulatory analysis requirement already imposed by the President through an executive order.44Finally, the law contains the so-called 'Bumpers Amendment' which would remove the presumption of validity that agency legal interpretationsnow enjoy when subjectedto judicial review.45 In addition to the likely enactment of comprehensive regulatory reform legislation, Congress has frequently added idiosyncraticrulemakingproceduresto specific statutes. For example, various statutes require agencies to hold several rounds of notice and comment, consult with specific interests or committees, hold hearings, allow cross-examination,make specific findings, and submit to review under the substantialevidence standard.46 Congress is increasinglyexperimentingwith legislative veto of rules, similar to the British practice of laying regulations before Parliament. More than one hundred statutes now contain a one-house or two-house veto provision. The legislative veto is intensely controversialand its constitutionalityis very much in doubt.47 Other Congressional tactics to gain control over rulemaking include legislation which overturnsspecific rules or stops pendingrulemakingproceedings and placing riders on appropriationbills which block or delay implementationof regulations.48 Congress also exerts searching, sometimes hostile oversight over all of aspects agency operation.49 Some interesting state developments also merit attention. In California the numberof pages of regulationshad increasedfrom 13,500 to 28,000 in four years, and several large industrial projects were scrapped supposedly because of over44 See text at n 41, supra. 45 The Administrative Conference opposes the Bumpers Amendment, the effect of which is most difficult to assess. See i CFR 305.79-6, 45 Fed Reg 2308 (I979). 46 For example, see the elaborate rulemaking requirements under the Clean Air Act described in Currie, 'Direct Federal Regulation of Stationary Sources under the Clean Air Act' 128 U Pennsylvania L Rev 1389, 1437-41 (1980). 47 See Consumer Energy Council v FERC 673 F 2d 425 (DC Cir 1982) (invalidating a one-house veto provision). See generally Bruff & Gellhorn, 'Congressional Control of Administrative Regulation' 90 Harv L Rev 1369 (1977), indicating that legislative veto has worked poorly in practice. It induces unhealthy timidity in administratorsand gives undue power to Congressional staff melnbers (and to special interests who are in touch with these staff members). There is also a trend toward legislative veto at the state level. 48 The Federal Trade Commission Improvement Act of x98o, PL 96-252, blocked several pending FTC trade regulation rules in their tracks. Use of the appropriationrider technique has been increasingly employed to prevent regulatory changes in the tax area. See Parnell, 'Congressional Interferencein Agency Enforcement:The IRS Experience' 89 Yale LJ 1360 (1980). 49 See W. Gellhorn, D. Byse, and P. Strauss, Administrative Law (7th ed i979) 107-i6.
MICHAEL ASIMOW
26I
regulation. The legislature responded by creating a new executive agency, the Office of AdministrativeLaw, with power to veto newly adopted regulations on In the grounds they are ultra vires, poorly written, inconsistent, or unnecessary.50 addition, the Office is to review all existing state regulations before I985. Some states have adopted rulemakingrequirementsfully as onerous as those which the courts have imposed at the federal level.5' Finally, many states have adopted 'sunset laws' which provide that an agency or a regulatoryscheme will go out of existence by a certain date unless the legislature specifically acts to renew its franchise. (e) Conclusion This brief account of regulation in America should give a British reader a fair impression of the ferment swirling within the area. Rules and rulemakingare the most controversialaspects of Americanadministrativelaw, are high on the list of the most controversialsubjectsin political science and economics, and are likely to remain so for the foreseeablefuture. The intensity of the rulemakingdispute, and the hodge-podge of judicial, legislative and executive proposals and initiatives, stands in rather striking contrast to the general lack of concern about rulemaking in Britain.
II. RULEMAKING IN BRITAIN
The law concerning regulation-makingin Britain is not difficult to summarize.52 Although there is a well-established custom of pre-adoption consultation with interested groups, the law imposes no general requirementof pre-adoptionpublic notice and comment and the rules of naturaljustice (or proceduralfairness) are Particular statutes do, however, impose duties of consultation.54 inapplicable.53 Interestingly, the Rules PublicationAct I893 requiredregulationsto be published in advance of their adoption, but the provision was frequently evaded (or
50 CaliforniaGovernment Code ss 11,340 et seq (I979). 51 Cal Gov't Code ss 11,340 et seq (1979); Frohnmayer, 'The Oregon Administrative Procedure Act: An Essay on State Administrative Rulemaking Procedure Reform' 58 Oregon L Rev 411 (1980). 52 See generally Wade, Chap 22; Allen, Chaps 4-8 (3d ed 1965). Canadianrulemakingpractice falls between the British and American models. Since 1978, 'major'regulations have been subjected to a mandatory requirementof public notice and consultation with respect to their 'social-economic impact'. Except for this innovation, the process of informal consultation and parliamentary scrutiny resembles the British model. One unique feature is required scrutiny of rules by the Department of Justice before they are promulgated. See generally Institute for Research on Public Policy (Stanbury ed) GovernmentRegulation: Scope, Growth, Process (I980) Chap 4. 53 See Allen Chap 6; Bates v Lord Hailsham [1972] i WLR I373. But see R v Liverpool Corp ex parte Liverpool Taxi Fleet OperatorsAssn [ r972] 2 QB 299. See text at n 84-7 infra for further discussion of consultation. 54 See, e.g. s 75, Control of Pollution Act 1974.
262
considered superfluous)55 and was repealedin 1946 in favourof a requirementthat delegated legislation be published after adoption.56Circulars and other official pronouncementshaving general applicabilitybut not made pursuant to statutory delegations need not be centrally published; the law seems unclear as to whether such non-delegated legislation has any legal effect at all.57The requirementof stating reasons for decisions does not apply to 'schemes of a legislative and not executive character'.58 Delegated legislation is laid before Parliamentwhich usuallyhas power to annul the rule by resolution of either House.59 While courts occasionally review it delegated legislation (usually in the context of an enforcement proceeding),60 would seem that relatively few rules are reviewed, that the underlying facts are presumedto support the rule, and that substantive review on the grounds of ultra vires or perhaps unreasonablenessis seldom probing or intrusive (at least by comparisonto review of judicial or administrativeactions).61 As far as I could determine, after conducting many interviews, the process of adopting and reviewing delegated legislation is generallyviewed as satisfactory. because Many observers believe that regulations are by definitionuncontroversial all controversial matters are disposed of in the primary legislation. The combination of informal consultation, laying before Parliament, ministerial and sporadic judicial reviews is perceived as an responsibility to Parliament,62 adequate check on bureaucraticover-reaching.Indeed, most (but certainlynot all) persons who are professionally involved in administrative law seem to regard rulemakingas a non-subject.
55 See Griffith and Street 130; J. Kersell, Parliamentary Supervision of Delegated Legislation (1960) 6-9. Ironically it was also in 1946 that the United States adopted the APA provision for advance notice and comment in rulemaking. 56 Statutory Instruments Act 1946. 57 Evans, De Smith's Judicial Review of Administrative Action (4th ed I980) 36, 73-6 (hereinafter cited as 'De Smith'); Wade 705-09, 725; Jergesen, 'The Enforcement of Administrative Procedures in Great Britain and the United States' 30 Am J Comp L 267, 276-80 (I982). The confusion about the legal effect of non-delegated legislation is well illustrated by comparing Blackpool Corp v Locker[1948] I KB 349 (treating a circular as enforceabledelegated legislation and criticizing its non-publication)with R v Sec'y of State for Home Affairs Ex Parte Hosenball [1977] WLR 766 and Metropolitan Bureau of Lewisham v Roberts[ 949] KB 608. 58 Tribunals and Inquiries Act 1971, s I2(I) and (4). 59 See text at n 81-3 infra for furtherdiscussion of the process of laying rules before Parliament. 60 See generally Wade 709-22; De Smith 354-6; Griffith & Street 112-21. See, e.g. Commissioners of Customs & Excises v Cure & Deeley Ltd [I962] I QB 340 (regulation which immunized administrative tax determinations from judicial review invalidated); Laker Airways Ltd v Dept of Trade [1977] QB 643 (minister's 'guidance' to Civil Aviation Agency ultra vires). 6I See, e.g. McEldowney v Forde [1971] AC 632; Hoffman, La Roche & Co v Secretary of State for Trade [1975] AC 295; Sparks v Edward Ash Ltd[1943] KB 228. See M. Shapiro, Courts (I981) I i6-25; but see Beatson, supra n 24 439-40. It would appear that the courts are somewhat less deferential in their review of local bye-laws. See Wade 713-15; Allen Chap 7. But see Kruse v Johnson [1I898]2 QB 9 (bye-laws should be benevolently construed and upheld if possible). 62 For furtherdiscussion of ministerial responsibility, see text at n i i -I6 infra.
MICHAEL ASIMOW III. PUBLIC INQUIRIES IN BRITAIN
263
The uniquely British institution of the public inquiry63 has no real counterpartin American practice.64 Nevertheless, a discussion of the rather formal and judicialized procedures employed at major public inquiries provides a striking contrast to the unstructured character of British rulemaking and striking similaritiesto Americanrulemakingpractice. Of the six to eight thousand public inquiries each year, most are particularized appeals from or objections to local authority decisions such as the refusal of planning permission. HIowever, the same vehicle is employed to consider objections to important political and economic decisions concerning urban redevelopment, slum clearance, motorway routes, natural resource development, nuclear reprocessing facilities, airports, or new towns. Such major commitments of land as the choice of a motorway resemble delegated legislation because they permanently affect the lives and property of large numbers of people. Thus it is not too surprising that the procedure employed at big public inquiries unmistakablyresembles Americanrulemakingprocedure. A big public inquiry commences with general notice to the public, as well as notification to persons particularlyaffected, much like American rulemaking.65 Procedure is typically governed by detailed rules which require disclosure of the authorities' reasons as well as explanatory material-again like American An inspector conducts a hearing which often includes elaborate rulemaking.66 testimony by experts and departmental representatives67and vigorous crossexamination. Little practicaldistinction seems to be drawn between persons who filed objectionsand other membersof the public.
63 On public inquiries, see generally R. Wraith and G. Lamb, Public Inquiries as an Instrument of Government (1971) (hereinafter referredto as 'Wraith & Lamb'); Wade Chap 24; P. McAuslan, The Ideologies of Planning Law (1980) Chaps 2 & 8 (hereinafter referred to as 'McAuslan'); Beatson, supra n 24 448-62 (drawing parallels to US rulemaking); Koch, "'Some Kind of Hearing" in England' 23 William & Mary L Rev 219, 249-58 (same); Williams, 'Public Local Inquiries; Formal Administrative Adjudication'29 Int'l and CompLQ 701 (1980). 64 Both federal and state statutes frequently require public hearings before important land use decisions are made, such as urban redevelopment, highway siting or zoning schemes. Typically, however, these are unstructured affairs designed to serve a ritualistic function rather than to gather information or seriously assist decisionmakers. See B. Schwartz & H. Wade, Legal Control of Government(1972) 137-42; 'Symposium on Public HIearings' 21 Ad L Rev 19 (1969). But see Izaak Walton League of America v Marsh 655 F 2d 346, 363-5 (DC Cir 1981) (agency must respond in writing to objections lodged at a public meeting). The trial-type hearings con(ductedby the Nuclear Regulatory Commission prior to issuing a construction permit for a new nuclear power facility are somewhat similar to the British public inquiry model. The quasijudicial procedure employed by the NRC has been unbelievably inefficient and costly. See Tourtellotte, 'Nuclear Licensing Litigation' 33 Ad L Rev 367 (198I); Cramton, 'A Comment on Trial-type Hearings in Nuclear Power Plant Siting' 58 Virginia L Rev 585 (1972). 65 Wade 791. 66 Wade 803. See, e.g. SI 1976 No 721 ss 5(3) and 10(3) (department in motorway inquiries must furnish list of documents it intends to introduce in evidence); Fairmount InvestmentsLtd v Sec'y of State for the Envirounment [1976] i WLR 1255 (HL). 67 Waller, Expert Witnesses at Planning Inquiries, [ 198 X ] J Plan & Envt'l L 394.
264
DELEGATED
LEGISLATION
Big public inquiries often run on for weeks or months, sometimes become highly acrimonious, and absorb enormous quantities of official time, energy and resources. Barristersfor the various interests must be present for the entire time. In these respects, inquiries go far beyond informal American rulemaking procedure where at most only oral arguments are allowed, not direct and crossexamination of witnesses.68Finally, the inspector recommends a decision to the Minister who must state reasons for his ultimate decision,69 much like the requirement of reasoned decision for rules in America. Following the Minister's decision, the inspector's report is disclosed and the order is judicially reviewable for a limited time. After the public phase of an inquiry ends and institutionalconsiderationbegins, an observer continues to detect parallels to American rulemaking. During this phase, a Minister may consult freely with other officials and make policy judgments without being limited to evidence of record.'7However, if a Minister differs from the inspector on a fact finding or takes into considerationnew factual evidence or expert opinion (except as to a matter of policy), he must furnish an opportunity to make contrary written representation or reopen the inquiry.71 Similarly, in Americanrulemaking,the factual submissions supportinga rule must be in the record and, if they are material, must have been advanced in time for outsiders to comment on them. Moreover, some American courts have restricted ex parte contacts by industry groups with rulemakers.72 British courts scrupulously enforce mandatory requirements both of the Tribunals and Inquiries Act 1971 and relevant regulations concerning procedure at public inquiries. In addition, they apply the rules of naturaljustice (or fairness, as it is sometimes called in this context) to the fact-findingphase of an inquiry73 (although not to the policy-making, purely administrative phase).74 Thus the courts, the departments, the Ombudsman, the Council on Tribunals, and the
68 However, the Senate recently passed S Io80 which would mandate cross-examination in many rulemaking proceedings. See text at n 42-5 supra. If ultimately enacted by Congress and signed by the President, this bill would bring American rulemakingprocedure much closer to the public inquiry model. 69 Tribunals and Inquiries Act 1971 s 12(I), a provision made specifically inapplicableto ministerial decisions of legislative rather than executive character. s I2(4). See Iveagh v Minister of Housing &Local Gov't [1964] QB 395, 410, 413. 70 See Lord Luke of Pavenham v Minister of Housing & Local Gov't [19681 I QB 172 (matter of planning merits is policy, not fact); Darlassis v Minister of Education (1954) 52 LGR 304. Similarly, American law now seems settled that the officials responsible for making the final decision about a proposed rule may consult ex parte with other government officials, such as the White House staff. See n 41 supra. 71 See, e.g. SI 1976 No. 721 s 15(2) (Highway Inquiry Procedure Rules); Errington v Minister of Health [19351 i KB 249. See note, 'Natural Justice after Close of an Inquiry' 40 ML Rev 87 (I977)72 n 25, supra. 73 See Bushell v Secretary of State for the Environment [I98 ] AC 75; Fairmount Investments Ltd v Secretary of State for the Environment [ 976] I WLR 1255. 74 Essex County Council v Minister of Housing and Local Gov't 66 LGR 23 (1967).
MICHAEL ASIMOW
265
public have all collaboratedto evolve a code of fair proceduresat inquiries from the raw materials provided by the judicial concept of naturaljustice (or fairness), from the Tribunals and Inquiries Act, from statutory requirementsfor holding inquiries, and from the various sets of proceduralrules. Similarly,in America,the President, the courts, the agencies, the AdministrativeConference,Congress and the public have graduallyknit a sophisticated code of rulemakingpractice and of judicial review from the few threads furnished by the APA and the judicial obligation to review discretionaryaction. Observers of the big public inquiry in Britain have become concernedwith the uncontrolledgrowth of the creature.75 When the public begins to take part on a massive and sometimes over-enthusiastic scale, when judicial procedures like cross-examination take root in administrative realms, when the public believes that issues of policy will be decided on an adjudicatoryrecord,when parties must hire counsel for proceedings which last for months, and when the issues at local inquiries are not confinedbut extend to national issues of transportpolicy or need for more coal or nuclear power,76 a well-designed procedure for considering objections can turn into a monstrosity. The recent Bushel!7 decision by the House of Lords may point the way toward bringing big public inquiries back under control as well as curbingjudicial interventioninto inquiryprocedures.This watershed decision certainly reminds an observer of Vermont Yankee78which turned the tide of judicial intervention and will probably help agencies to keep rulemakingproceduresunder some reasonablecontrol. Bushell arose out of a local inquiry into objections to a scheme authorizing construction of a stretch of motorway. The House of Lords held that an inspector's refusal to allow cross-examination of a department's witness about projections of future traffic growth was not unfair to objectors. In addition, the Lords upheld a refusal by the Minister to reopen proceedings even though the Department's methods of making such projectionshad been altered. Some of the speeches indicate that the matters in dispute related more to policy than to facts, and thus were inappropriatefor consideration at an inquiry;others held that the Minister's decisions were not prejudicial. It seems likely that Bushell will sharply limit judicial second-guessing of decisions by inspectors and departmentsconcerning the manner in which public inquiries are conducted. Moreover, by labelling an issue as a matter of national policy (such as the need for nuclearpower), it would appearthat a departmentcan put the issue (and its factual underpinnings) off-limit to examination at the
75 See Wade 8i8; Outer Circle Policy Unit et al, The Big Public Inquiry (1979) (suggesting alternative format with very little trial-type procedure). 76 Although provision exists for a planning inquiry commission which would take up broad issues of need and policy in a non-adversary setting, it has not yet been attempted. See Edwards and Rowan-Robinson, 'Whatever Happened to the Planning Inquiry Commission?' [1980] J Plan & Envt'l L 307; Wraith & Lamb 200-02, 337-40. 77 Bushell v Secretary of Statefor the Environment[ i981] AC 75. 78 See text at n 24 supra.
266
DELEGATED
LEGISLATION
inquiry. To an outside observer, this result has considerable merit. Issues of legislative fact and policy seem better suited to debate by written statements and oral argument,ratherthan to trial procedure.79 However, it would be regrettableif the Bushell decision proves to be the occasion for precluding all public participation(even through written representationand oral argument)concerning issues of need, methodology,projection,and policy.80
IV. SPECULATIONS
AMERICAN
ABOUT THE DIFFERENCE
BETWEEN BRITISH AND
RULEMAKING
The balance of this paperconsists of speculation about why the substanceof rules and the procedureby which they are made is the subject of such intense interest and controversy in America and so uncontroversialand perhaps uninteresting in Britain. (a) Laying beforeParliament It may be thought that the benign British attitude toward delegatedlegislationcan be explained by the long-established procedure for laying regulations before Parliament together with provision for annulment (or in some cases required approval)of the rules of either House.8' As critics have pointed out,82however, parliamentarycontrol over rulemakingis quite ineffective as a check against illconsidered rules. Membership on the Merits Committee is understandably unpopularin light of its lack of power and the Joint Scrutiny Committee seems little more attractive. In addition, the forty-day annulment period is often too short and little time for debate is made available.As would be expected, members are generallyuninterestedand poorly informedabout the substance of rules, while administrators are ill-disposed toward making changes in already completed instruments. While the laying process is traditional and may have improved the drafting of rules,83it seems of little practical significanceas presently constituted
79 See G. Ganz, Administrative Procedures(1974) Chap 7; Wraith & Lamb Chap 8; The Big Public Inquiry, supra n 75, 55. 80 When public inquiries proved to be unsuitable as a method for considering the broad details of town planning, a more flexible 'examination in public' emerged to provide some public participation and an organized flow of information without the baggage of trial procedures and their unacceptable costs and delays. See generally N. Roberts, The Reform of Planning Law (1976) I i6-I8, 228-30; McAuslan Chaps i & 2; Wade I65-67. Perhaps public inquiries about majornaturalresource or motorway questions will evolve in the same way. See n 76, supra. 8x See Wade 731-38; J. Kersell, Parliamentary Supervision of Delegated Legislation (I960); Griffith& Street 84-99. 82 See Allen Chap 5; Beatson, 'Legislative Control of AdministrativeRulemaking:Lessons from the British Experience?' 12 Cornell Int'l LJ 199 (1979), which summarizes several parliamentary studies; Macrory, 'Lead in Petrol: No Cause for Action' [1981] J Plan & Envt'l L 258. As the Parliamentary Select Committee on Procedure noted in its first report: 'We believe that the system provides only vestigial parliamentarycontrol of Statutory Instruments... and is in need of comprehensive reform.' 1977/78, Vol I para 3. Io. 83 Wade 735-6; Griffith & Street 99.
MICHAEL ASIMOW
267
and could not explain the general satisfaction in Britain with the substance of rules and the procedureby which they are made. (b) The consultationprocess A more plausible explanation for the British attitude that rulemakingis a nonproblem is that officials routinely conduct informal consultation with interested groups before regulations are adopted.84A department typically maintains a mailing list of groups known to be interested in its operations (such as local governments and scientific, industrial or public interest groups) and circulates draft regulations to them. Representativesof these bodies correspondwith and, less frequently,actually meet informallywith the officials responsiblefor drafting the rule. So far as I could determine, in talking with environmentalgroups and others interested in pending regulations, the system works satisfactorily. Only a few tentative voices have suggested the contrary.85 Yet an observer accustomed to a more structured system of notice and comment finds the British approachinadequate. Informal consultation through a mailing list cannot reach individuals nor fringe groups and often misses even established groups which are not known to be interested in the problem.It reaches only groups or governmentalbodies alreadyin a department'sfiles and which may already have undue influence over that body.86Moreover, informalconsultation furnishes no obvious method by which interested persons might become familiar with and respondto submissionsby others who have been informallyconsulted. In America, by contrast, a proposed rule is published in the Federal Register which is subscribedto by many people interested in particularsorts of regulation, many of them previously unknown to a rulemaking agency. The notice invites comment and often triggers an outpouring of responses. Commentatorscan read the comments made by others in the rulemaking file and respond to them. Although an agency can, of course, solicit, then ignore, contributions which it regards as worthless or trivial, this is a risk in any mass participation process,
84 See generally Wade 728-31 (describing consultation as a major industry of government); J. Garner, 'Consultation in Subordinate Legislation' [i964] Pub L 105 (describing consultation as the art of government); G. Ganz, supra n 79, Chap 6 (1974); Griffith & Street 30-I, 126-143. Where statutes require consultation, the courts strictly enforce the requirements. See Agricultural Training Bd v Aylesbury Mushrooms Ltd [1972] I WLR I90 (I8o mushroom growers excised from a regulation because they had not been consulted, even though they were sent a letter which was never received and their parent agriculturalgroup was properlynotified). But see Gallagher v Post Office [1970] 3 All ER 712 (deference to post office decision about which groups to consult). On required consultation, see Jergesen, 'The Legal Requirements of Consultation' [1978] Pub L 290; Griffith & Street, supra. 85 See Beatson, supra n 82, 204, 224; R. Cranston, Consumersand the Law (1978) 334-5; G. Ganz, supra n 79, Chap 6; Garner, supra n 84, 121-4. 86 Gamer, supra n 84, 12I. For a rare litigated example, see Bates v Lord Hailsham [I972] i WLR 1373. In Bates, a statute which delegated authority to perform ratemakingfor solicitors provided for consultation with the Law Society. Another group of solicitors, who were not consulted, attacked the rates, but the court held that there is no duty to act fairly in preparing delegated legislation.
268
even a British public inquiry. The risk is greatly diminished because the courts now require that an agency respond to the material objections made by commentators in the statement of basis and purpose which accompanies a final rule. In addition, agencies frequently conduct oral hearings at which any interested person is invited to present argumentsto the decision-makers,a useful device for focusing attention on overlooked problems or on the intensity of the speaker'sfeelings. The Americansystem thus enriches the quantity and quality of inputs available to decision-makers and is universally considered to enhance democraticvalues of public participationin the makingof crucialdecisions as well as to improvethe acceptabilityof those decisions to persons affected by them.87 (c) The written constitutionandjudicial activism The American written constitution explains many differences between the legal system of the two nations, but it cannot furnish a simple explanation for their differing attitudes toward delegated legislation. The many American court decisions concerning rulemakingare not based upon constitutional law but upon statutory interpretation, because constitutional procedural due process requirements (similar in broad outline to British natural justice) apply only to adjudication,not to rulemaking.88 Nevertheless, it seems clear that the intense involvementof the federaljudiciary with rulemaking has catalysed American attitudes toward the subject. If the courts had been indifferentto claims that rulemakingprocedureswere inadequate and deferentialto agency contentions that rules were reasonable,much of the legal and political controversy surrounding the subject would probably never have arisenor at least would have been confinedto legislative and executive initiatives. T'hewillingness of Americancourts to involve themselves in highly political and visible confrontations with the executive branch on rulemaking questions is traceable to constitutional roots. The long tradition of judicial review of the constitutionalityof statutes has fostered a peculiarattitude of relianceon courts to solve political controversies where a legislative response is perceived to be inadequate. Every day, American courts issue constitutional rulings on political issues, such as the right to abortion,reformingelectoraldistricts, choice of school library books, or prison reform, which would be reserved to legislative bodies in Britain. Consequently, American litigants displeased with particularregulations look naturallyto courts for non-constitutionalrelief. They did so at a time when popular distrust of government and academic criticism of the regulatoryprocess made judicial interventionism politically feasible. Consequently, the courts
87 See n I 7, infra. 88 See United States v Florida East Coast Ry 410 US 224 (1973); Gellhorn and Robinson, 'Rulemaking"Due Process:" An Inconclusive Dialogue' 48 U Chic L Rev 201 (198I). Procedural due process constraints (e.g. notice, a trial-type hearing, an impartialdecisionmaker)might apply to a rulemakingproceeding in which a very small number of persons are exceptionally affected, in each case upon individual grounds. Vermont Yankee Nuclear Power Corp v Natural Resources DefCounc 435 US 519, 543 (1978) (dictum).
MICHAEL,
ASIMOW
269
responded by rebuilding rulemaking procedure along quasi-adversarylines and conducting intensive substantivescrutinyof rules. Britain seems much less oriented toward using litigation to settle disputes, particularlythose in which official discretion is questioned or in which political overtones are present. Instead, it seems that such disputes are usually settled quietly through compromise rather than courtroom confrontations or resolved through conventional political processes. While British judges undoubtedly feel less restrained in second-guessing discretionary decisions, especially those made by local governmentofficials,than in years past,89and while the wave of American judicial interventionism has certainly receded from its crest,90the difference in attitude and custom remainsenormous. (d) Importanceof delegated legislation Delegated legislation is relatively uncontroversialin Britain because government seeks to accomplish relatively little through this technique. Britain has fewer regulations and most of them are less important than in America.To use a gross method of comparison, the number of newly-adopted British statutory
instruments in 1977, 1978, and I979 total 1,918, 1,62I, and I,770, respectively, a
great many of which relate to matters dealt with at state or local levels in America. In the USA, it is estimated that 7,000 legislative rules are promulgatedannuallyat thefederal level,91of which 2,000 have a 'significant impact' on regulated parties or on competition and more than one hundred have major economic effects (an economic impact of $ioo million or more).92 While some statutory instrumentsare important by any standard, such as those concerning change of use in town and country planning, industrial safety regulations, building construction rules, lead content in petrol, or control of advertising,93the vast majority of the annual harvest of regulations seem of very little general significanceor downright trivial. The real question, therefore,is why Britainrelies so little on delegatedlegislation. Both nations grapple with the same problems of controlling technology, ensuring environmental and industrial safety, regulating land use, providing telecommunication and public utility services, administering a welfare state, operating complex schemes of taxation, and so on. Americans tend to seek
89 See De Smith 31-55; Bromley London Borough Council v Greater London Council [1982] 2 WLR 62 (HL); Secretary of State for Educ & Science v Tameside Metropolitan Borough [1977] AC IoI4; Laker Airways Ltd v Dept of Trade, supra n 60; Congreve v Home Office [1976] i QB 629; R v Sec'y of State for the Environment ex parte Brent London Borough Council[ 1982] QB 593,640-647. go See Vermont Yankee Nuclear Power Corp v NRDC supra n 24; FCC v WNCN Listeners Guild 450 US 582 (198I); American Textile Mfrs Inst v Donovan 452 US 490 (198i). 91 Of course, the fifty states and countless local entities are also heavy producers. By 1978, for example, Californiahad 28,000 pages of administrative regulations. 92 Neustadt, 'The Administration's Regulatory Reform Program: An Overview' 32 Ad L Rev 129 ( 980). 93 De Smith 14; Cranston, Consumersand the Law (1978) Chaps io & I; Griffith & Street 38-41; Macrory, 'Lead in Petrol: No Cause for Action' [ 98 ] J Plan & Envt'lL 258.
270
solutions through regulation in the broad sense of government control of private sector economic behaviour; this generally entails regulations in the narrow sense of subordinatelegislation. Regulatorystatutes are frequentlythe subject of a bitter Congressionalstruggle at the time of their enactment.Very frequently,the bill originallyproposedby the President bears little similarity to the final product. The legislation is shaped by compromise between parties, regions, and special interests. The byplay between the two Houses of Congress and the manipulations of committee chairmen, jealous of their prerogatives,often play an importantrole in moulding legislation. The result of this process is that many important, even fundamentalpoints are never resolved in the legislation itself, because no acceptablecompromisecould be found. In order to pass the bill, the gap is papered over by delegating the responsibility for settling these matters to the agency which is responsible for enforcing the legislation. The result, of course, is a new political process at the agency level94and ultimately reams of importantregulationsto settle vital details left vague by the statute. In Britain, by contrast, the government has no need to leave important details to the regulatory process, for it can have its way at the time the bill is enacted in Parliament(assuming, of course, that it has an absolute majority). Another importantreason why Britain relies less on delegatedlegislation is that it employs many alternatives both to regulation and regulations. For example, nationalizationof an industry means that it will be controlledthrough managerial or contractual techniques and informal political pressures, not through formal In America, nationalizationis politically unacceptablefor the most regulations.95 part; consequently, communications, gas and electricity, transport, and basic industries like steel remain in private hands. As a result, a regulatory structure must be createdto compel these enterprisesto operate in the public interest. In many cases, the regulatory agencies have a choice of discharging their functions through case-by-case formal adjudication or through generally applicablerules. At the time the APA was passed, adjudicationwas much more frequently used than rulemaking,but there has been a marked shift in favour of using rules. It became obvious that the regulationof industrialbehaviour,market structure, or pricing is difficult to achieve, and procedurallyvery cumbersome, when pursued through individualized adjudications. We now perceive many advantagesto rulemaking:all competitorscan be treated equally,harsh retroactive effects can be avoided, and rulemaking is procedurallybetter adapted to the
94 See L. Jaffe, 'The Illusion of the Ideal Administration' 86 Harv L Rev 1183 (1973) (which contains a brief intellectual history of the broad delegation-narrow delegation controversy). For an excellent example, see Industrial Union Dept AFL-CIO v American Petroleum Institute 448 US 607 (I980). 95 See De Smith 2; B. Schwartz and H. Wade, Legal Control of Government(1972) Chap 2; Outer Circle Policy Unit, What's Wrong with Quangos (1979); Ganz, 'Allocation of Decision-Making Functions' [1972] Pub L 215.
MICHAEL
ASIMOW
271
For example, rulemakingis more open to public input, not encumbered purpose.96 by lengthy and expensive trials, and creates general principles which are more accessible than those created by a body of adjudicatoryprecedents. With the exception of a few bodies like the Civil Aviation Authority, Britain's regulatory agencies conduct hardly any complex formal adjudications.Consequently, there has been no correspondingstimulus for departmentsto adopt general regulations to displace adjudication. Even where economic activity remains in private hands and must be regulated in some form, Britain relies on a number of techniques to control behaviour without the use of regulations.For example, a number of functions performedby administrative agencies in America are carried out by British courts. Courts are responsible, for example, for various forms of licensing and for administrationof certain housing statutes.97In addition, many matters regulated by agencies in America are dealt with by voluntary codes of practice, especially in the fields of labour and consumerprotection.But the most importanttechniquefor controlling the private sector is through heavy reliance on official discretion to make individualized orders. Typically, Parliament identifies a problem and enacts a general enabling statute conferring broad discretion on defined officials. These discretionary powers are often loosely circumscribedby guidelines preparedby centralgovernmentdepartments.98 The difference in approach between the two systems emerges upon consideration of several examples. The highly discretionary system of land use control in Britain relies heavily upon individualizeddecisions made upon requests by landowners for permission to develop their property.Americansapproachthe same problem through a more rigid system of generally applicablezoning laws; developmentwhich complies with the zoning law requiresno permission.An even more graphic example is the control of air and water pollution. Americans rely heavily on rules which identify permissible levels of air and water pollution,
96 The choice of rulemakingrather than adjudicationwas applaudedby many judicial decisions. See Permian Basin Rate Cases 390 US 747 (I968) (use of area-wide regulations to set natural gas prices); American Airlines, Inc v CAB 359 F 2d 624 (DC Cir), cert den 385 US 843 (1966); National Petroleum Refiners Assn v FTC 482 F 2d 672 (DC Cir I973), cert den 415 US 951
(I974).
97 In addition, controls on pesticides are administered judicially. See Royal Commission on Environmental Pollution: 7th Report, Agriculture and Pollution (1979) 61-4, Cmnd 7644. See also R. Cranston, Consumersand the Law (1978) Chap 8 (statutes regulating trade descriptions and food quality enforced by courts without benefit of administrative regulations); Ganz, 'Allocation of Decision-Making Functions' [1972] Pub L 215; De Smith I6 (liquor and cabaret licensing); McAuslan Chap 7 (1980) (control of housing conditions); 98 Even when a statute requires the adoption of subordinate legislation, the departments frequently adopt regulations which leave important matters to be settled by discretion. The promulgationof vague regulations was strongly criticized in the First Special Report from the Joint Committee on Statutory Instruments, HC 169, p. io- I (1977/78).
272
DELEGATED
LEGISLATION
In Britain, by contrast, the regulationof certain forms of industry by industry.99 pollution is assigned to the alkaliinspectorateor to regionalwater authoritieswho negotiate emission limitations with polluters. While they are controlled to some degree by guidelines or circulars, alkali inspectors or water authorities have substantialautonomyto fashion compromiseswith particulardischargers.'00 It is, of course, difficult or impossible to say whether an environmentalcontrol system grounded in rules or a system grounded in discretion yields greater net benefits. Nevertheless, some tentative conclusions can be voiced. The British approachclearly has significant advantages. For example, individuallynegotiated emission limitations may be more stringent than those imposed by a general rule because a rule must accommodatethe least efficient producerwho is to remain in business. A more discriminatingapproachcan require more prosperouspolluters to make greater investments in anti-pollutionequipment. A single, inflexiblerule fails to take into account many site-specific considerationswhich call for more or less stringentcontrols. Even more important, the British negotiated settlement approach avoids the adversary, confrontational style so characteristic of American environmental regulation. It tends to produce results more quickly and minimizes costly litigation. But particular low-visibility compromises may be more lenient than would be achieved through a system of strict, relatively inflexible regulations.'0' This can easily occur because the individual inspectorresponsiblefor workingout a particularagreementis anxious to remain on congenial terms with the corporate officials with whom he must constantly deal or because he lacks sufficient information and sophistication to insist on a stronger agreement. On balance, it appears that the non-adversarialBritish approachis at least equally effective in improving environmentalquality and operates at a lower cost with much less friction. The realization that Britain leans more heavily than America toward discretionarycontrol ratherthan rigid regulationpromptsan observerto reflecton some fundamentaldifferences between the two societies in their attitude toward A recurrentstrain in Americanculture has always been bureaucraticdiscretion.102
99 For example, the provisions for air pollution controls on new plants are set at the federal level and are both strict and uniform. 42 USCA s 7411 (I980). See Currie, 'Direct Federal Regulation of Stationary Sources under the Clean Air Act' 128 U Pennsylvania L Rev 1389 (1980); Ackerman & Hassler, n 8 supra. Similarly, water pollution control guidelines are set uniformly for all similar dischargers, although variances can be requested. 33 USCA ss I251-376 (I980). See E. I. Du Pont de Nemours & Co v Train 430 US 112 (1977). Regulations are also extensively employed in state environmentalcontrol schemes. See Currie,'State Pollution Statutes' 48 U Chi L Rev 27, 35-45 (1981)? ioo See generally G. Rhodes, Inspectorates in British Government (198x) Chaps 6, 7, & 8 (hereinafter cited as 'Rhodes'); Royal Commission on Environmental Pollution, Fifth Report, Air Pollution Control: An Integrated Approach (1976) Cmnd 637I; Garner, Control of Pollution Encyc (rev 1980); R. Macrory and B. Zaba, Polluters Pay (Friends of the Earth, 1978). ioi See Rhodes Chaps 6, 7, & 8. 102 See H. Wade, 'Anglo-AmericanAdministrative Law: Some Reflections' 8I LQR 357 (I965).
MICHAEL ASIMOW
273
distrust of government officials, from political appointees at the top to humble bureaucrats at the bottom. The intensity of this attitude waxes and wanes; currently, the level of suspicion seems quite high by historical standards. Logically, people who distrust governmentofficials are apprehensiveabout leaving discretionary powers in their hands, fearing that the power will probably be abused and that persons will be treated unequally or unfairly. This attitude may underlie the prevailingview that, whenever possible, discretionarypowers should be limited. Of course, nobody pretends that discretion can or should be eliminated; a great many decisions must be taken on an individualized basis. Nevertheless, Americanscharacteristicallybelieve that broad discretion should be fettered, or at least structured,if not by statutory standards,then by regulations, or by self-imposed, non-delegated subordinate legislation (such as guidelines or policy statements), by adherence to precedent, or through formalizing the decisional process.'03Agencies are often required to observe their self-imposed limitations on discretion.104 This emphasis on limiting discretion by rules and standards recognizes that executive, legislative, and judicial control over agency discretion is sporadicand ineffectivein preventingmaladministration. The British attitude toward discretion is quite different.'05Where a statute confers broad discretion upon an official, it is held that this power should not be fettered through adoption of binding rules, policies, or precedents.106 At most, agencies may work out presumptive policies but apparentlymust be preparedto hear and consider applicationsto depart from the policy or precedentin particular
103 See K. Davis, Discretionary Justice: A Preliminary Inquiry (I969); Davis Treatise Chaps 8, 9, & 13 (1978); Morton v Ruiz 415 US 199 (1974) (requiring welfare agency to structure its discretion through rulemaking).Needless to say, however, large pools of unstructureddiscretion remain. See Davis Treatise supra at ss 8.10oto 8.I2 and Chap 9 (dealing with aliens and enforcement discretion). 104 See, e.g. Vogt v United States 537 F 2d 405, 412-14 (Ct Cl 1976) (Revenue Service prohibited from departing from its well-established interpretive rulings in particularcase); Jergesen, supra n 57 (agencies required to observe their own procedure rules, whether or not the rules are delegated legislation). But see Rank v Nimmo 677 F 2d 692, 698-99 (9th Cir 1982) (circularnot enforceable against agency absent estoppel). A related principle is that an agency departing from its prior adjudicative precedents must supply a reasoned analysis which indicates that the prior policies are being deliberately changed, not casually ignored. Baltimore & Annapolis R v Metro Area Trans 642 F 2d I365, 1370-3 (DC Cir 198I). Washintgton I05 See generally MeAuslan, supra n 63, an enlightening analysis of the dominance of the public interest ideology-which means that government knows best and therefore should exercise unchecked discretion. Professor Wade catalogues executive discretionary powers, all of them far wider than their American counterparts. H. W. R. Wade, Constitutional Fundamentals (1980) 4 i-6o. See also Meredith, 'Executive Discretion and Choice of Secondary School' [1981] Pub L 52 (discretion of local authority to assign children to schools is vastly wider than discretion of American school board). Io6 Galligan, 'The Nature and Function of Policies within Discretionary Power' [19763 Pub L 332; De Smith 311-17; Merchandise Transport Ltd v British Transport Commission [1962] 2 QB 173.
274
cases.'07 According to some decisions, the policy can be considered as no more than anotherfactor to be applied.'08 Judicialreview of discretionaryaction occurs, of course, but is relatively infrequent and generally deferential.'09In general, it appears to a foreign observer that the Civil Service enjoys a high level of confidence in the eyes of both the general public and the courts, a consequence perhapsof the homogeneity of the educated classes which by and large man both the Civil Service and the judiciary. Hence, it is hardlysurprisingthat there is little pressure to pin down many details through regulation, as opposed to working things out in practice."0 (e) Ministerial responsibility It is sometimes asserted that ministerialresponsibilityto Parliamentis the British substitute for proceduralcontrols on rulemaking,such as more formalizednoticeand-comment procedures, or for more intensive judicial review. "' Because a minister is always answerable to Parliament for regulations adopted by his department, the argument suggests, his scrutiny and that of Parliament supply adequate checks against bureaucratic over-reaching.12 While ministerial responsibility is a corner-stoneof the British constitution, and plainly serves as a significant restraint on highly visible administrativedecisions, it seems virtually irrelevant as a technique to improve the quality of thousands of regulations adoptedby an armyof Civil Servants."13 Certainly, in making fundamentaldecisions about motorways, naturalresource development,or the location of a nuclearreprocessingplant or an airport,practical people do not rely on the abstract concept of ministerial responsibility to Parliament to serve as a check on administrative error, to provide public participation,or to confer political legitimacy upon the ultimate decision. Instead,
107 R v Port of London Auth ex parte Kynoch Ltd [i919] i KB 176, 184; British Oxygen Co v Miinisterof Technology[197I] AC 6io; R v Sec'y of State for the Environment ex parte Brent London Borough Council, supra n 89. See the conflicting views of Lord Denning MR and Phillimore LJ in Sagnata Investments Ltd v Norwich Corp [1971] 2 QB 614, 626-7, 640. io8 Galligan, supra n 105, 348--50. M. Shapiro, Courts (I981) II6-25. But see the cases cited in n 89 supra, in which judicial o109 review of discretionary action was anything but deferential. Of course, the Parliamentary Commissioner for Administration (Ombudsman) serves an important controlling function as well. See Wade 77-90; Bradley, 'The Role of the Ombudsman in Relation to the Protection of Citizens' Rights' [1980] Camb L 304, 324-51; Jergesen, supra n 57, 273-5. iio But see Jowell, 'The Legal Control of Administrative Discretion' [19731 Pub L 178. Jowell catltiously favours limiting official discretion through rules or through adjudication, but recognizes large areas in which the costs of doing so outweigh the benefits or in which the issues are not functionally suited to decision except through broad discretion. iil See, e.g. Local Government Bd v Arlidge [1915] AC 120 (ministerial responsibility to Parliament is only effective check on decision to close (lown house as unfit for habitation). On the subject of ministerial responsibility and its relationship to administrative law, see generally of Decision-Making Functions' [1972] Pub L 215, 299. Ganz, 'Allocation i i2 In addition, complaints about rulemaking can be considered by the Parliamentary Commissioner for Administration(Ombudsman). Wade 82-4. 113 See J. Mitchell, Constitutional Lzow (2d eld I968) 201-02; H. Wade 32, 76-7; De Smith 49-53.
MICHAEL ASIMOW
275
the institution of the local public inquiry has evolved to provide an appropriate procedurewhereby those who will be affected by a decision can seek to influence it. In addition, the inquiry serves as a valued channel for information and argument to the minister who is responsible for making the final decision. Public inquiries are so deeply rooted in British soil that some form of organized public proceeding will always have to occur before government makes a final, major commitment involving the use of land. Since people do not rely upon ministerial responsibility to ensure public participation,adequateinformationflows, or reasoned decisions about land use, it is difficult to understand why that principle could be considered as a practical control on the process of rulemaking.By no coincidence, the mechanics of a big public inquiry have come to bear a marked resemblance to modern American rulemakingprocedure,14 although the public inquiry also contains an element of excessive formality and judicialization which seems counterproductive."5Both rulemakingand public inquiryprocedureare well designed to ensure public notice and involvement and responsive political decisions while leaving the ultimate decision about policy in the hands of the individual or agency legally responsible for making it. If they are left sufficientlyinformal,neither a public inquiry nor a structured system of notice-and-comment for rulemaking need undercut the principleof ministerial responsibilityto Parliamentnor create any illusions in the minds of the public that a decision about policy will be determinedby the evidence introducedat a trial.116
V. CONCLUSION
This article suggests several explanations for the striking differences between American and British attitudes toward rulemaking. The most significant explanation seems to flow from deep cultural differences between the countries. Americans traditionally distrust officials and favour adversary procedures and judicial interventionism. In Britain, on the other hand, people are comfortablein relying on official discretion to strike compromises and make individualized judgments which are never reviewed by courts. In addition, many British observers seem satisfied with the combination of controls presently placed on rulemaking-informal consultation, laying before Parliament,complaints to the Ombudsman,and ministerialresponsibility. In America, we have many more rules than in Britain, carefully defined proceduresfor making them-and vastly more dissatisfaction with the procedural and substantive result. On the other hand, when it comes to making decisions about land use, motorway construction, or naturalresource development, Britain has far more procedural formality-and seemingly more public dissatisfaction
114 See text at n 63-72, supra.
I 15 See text at n 79, supra. Ir6 See Beatson, supra n 24, 457--60, 463 (excessive judicialization of public inquiries is inconsistent with maintenance of political responsibility).
276
with the result. This peculiarcircumstance might suggest an even more peculiar conclusion: that the acceptabilityof procedureto persons affected by a particular process is in inverse proportionto the formality of the procedure.However, this conclusion is certainly counter-intuitive and contradicts ordinary observation. Instead, it seems clear that persons find a particularoutcome more acceptable if they believe that their views have been invited, heard, and taken into account.'17 The fact that people seem dissatisfied with rules in America and with various decisions concerning land use in Britain simply reflects widespread, wellorchestrated and vehement opposition to particularsubstantive outcomes which could never be neutralizedby any procedure.Instead, opponents of the outcomes deflect their substantive opposition against whatever procedure has been employed."8 Consequently, in an attempt to satisfy these persons, procedures become ever more formalized,delays and legal hurdlesmultiply,but there is never enough procedureto satisfy them."9 This might suggest that Britain is right not to formalizeits rulemakingand wrong to formalizeits inquiries,that the last thing it needs is to articulate rulemakingprocedures and thus set off a cycle of rising expectations like that which afflicts its inquiry practice and which is endemic to Americanrulemaking. But this conclusion would be too hasty, because it concentrates too much on complaints and controversy and not enough on the compelling advantages of the procedures.Each country has something to teach the other. Americanrulemaking procedures have improved the quality of rules and furnished a sense of participation very satisfying to the persons who must live with the rules. Similarly,British inquiryprocedures,for all their defects, have broughtthe people closer to government decisions having critical effects on their lives.l20 Neither country will, or should, abandon these procedures,though they must be pruned from time to time, lest the desire to make proceduresacceptableto those affected overwhelms competing values of efficiency and accuracy. Both countries should begin the process of judicious samplingof the other's fumblingattempts to involve the public in critical administrativedecisions.
117 This simple observation underlies both the concepts of naturaljustice in Britain and procedural due process in America. For discussion of the link between the legitimacy of an administrative process and the acceptability of its procedure to persons affected by it, see J. Freedman, Crisis and Legitimacy (1977) Chaps i, 3, & 20; Cramton, supra n 64; Verkuil,'The Emerging Concept of Administrative Procedure' 78 Colbi L Rev 258 (1978); Thibaut & Walker, 'A Theory of Procedure'66 Calif L Rev 541 (1978). i 8 See Verkuil, supra n 117, for extensive discussion of the historical connection between opposition to substantive outcomes and a desire for greater proceduralformality. I I9 The pending regulatory reform bill in the United States is an example of this phenomenon. In response to widespread disagreement with regulatory outcomes, Congress appears to be on the verge of legislating a new mandatory and inflexible set of proceduralrules. See text at n 42, supra. 120 The much less structured public hearing procedure in America serves a merely ritual function and appears to be a source of intense frustration to those who seek to take advantage of it. See Wexler, 'The Public Hearing in Federal and State Legislation' 2I Ad L Rev I65 (I969).

Article On Delegated Legislation in USA and UK

Caricato da

Informazioni sul documento

Descrizione originale:

Titolo originale

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

Article On Delegated Legislation in USA and UK

Caricato da

Copyright:

Formati disponibili

Delegated Legislation: United States and United Kingdom Author(s): Michael Asimow Source: Oxford Journal of Legal Studies,

DELEGATED LEGISLATION: UNITED STATES AND UNITED KINGDOM

I. RULEMAKING IN THE USA

MICHAEL ASIMOW III. PUBLIC INQUIRIES IN BRITAIN

ABOUT THE DIFFERENCE

BETWEEN BRITISH AND

Potrebbero piacerti anche