Delegata potestas non potest delegari is a principle inconstitutional andadministrative law that means inLatin that "nodelegated powers can be further delegated". Alternatively, it can be stateddelegatus non potest delegare ("one to whom power is delegated cannot himself further delegate that power").[1]
The principle is present in severaljurisdictions such as that of theUnited States, theUnited Kingdom andIndia as well as inCatholic canon law.
InAustralia the maxim has been largely superseded bystatute andcommon law.[2][3][4] There is a long line of authorities applying theCarltona principles[5] to Australia.[6][7][8][9]
However, courts have found that where a statute expressly requires a personal action, such delegation is not possible.[10][11][12]
InDooney[13] theHigh Court of Australia (Callinan J),[14] 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 bylegislation. Section 34AA and 34AAB of thefederal government'sActs Interpretation Act 1901 clearly create a statutory power to delegate, contrary to the maxim. The federal legislation is echoed in some state legislation.[15]
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. Vestiges of the maxim have therefore been preserved by the Act.
The principle was summarised inCanada in 1943, in an article in theCanadian 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,[16] 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.[17][18]
InIndia, the principle is used inIndian Contract Act, 1872 Sec 190 which deals with agency.[citation needed] It was first applied inA K Roy v State of Punjab (1986) 4 SCC 326, which held that sub-delegation of delegated power isultra vires to the Enabling Act.[19][not specific enough to verify]
In the United Kingdom, the concept has been used to question the validity of theParliament Act 1949, because that Act expanded the power of theHouse of Commons but was passed solely by that House (under the terms of theParliament Act 1911) without the consent of theHouse of Lords.[20]
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 theSupreme Court of Pennsylvania in 1794, inM'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."[21]
The maxim was first cited by theSupreme Court of the United States inUnited 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."[22]
Canon 137 of the1983 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 theApostolic 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.
