Control of delegated legislation by judiciary
Control of Delegated Legislation by Judiciary
What is Delegated Legislation?
Delegated legislation (also called subordinate or secondary legislation) is law made by an authority other than the legislature but under powers granted by the legislature. Examples include rules, regulations, by-laws, and orders made by government ministers, agencies, or local authorities.
Why Control Delegated Legislation?
While delegated legislation allows flexibility and expertise in law-making, it carries risks:
Excessive delegation might lead to abuse of power.
Delegated legislation might conflict with the parent Act.
It might violate fundamental rights or principles.
Hence, judicial control ensures delegated legislation is made within legal bounds and does not infringe on fundamental rights or exceed authority.
Judicial Control of Delegated Legislation: Methods
Doctrine of Ultra Vires
Delegated legislation exceeding the authority given by the parent Act is invalid.
Procedural Ultra Vires
Failure to follow prescribed procedures invalidates the legislation.
Substantive Ultra Vires
The content or substance of the delegated legislation is beyond the powers granted.
Unreasonableness or Irrationality
Delegated legislation may be struck down if it is unreasonable or arbitrary.
Landmark Case Laws Illustrating Judicial Control over Delegated Legislation
Case 1: R. v. Home Secretary, ex parte Fire Brigades Union (1995) (UK)
Facts: The Home Secretary had statutory powers to introduce a new criminal injuries compensation scheme but delayed implementing it, opting to continue the existing scheme.
Issue: Whether the Home Secretary’s delay and refusal to implement the delegated legislation were lawful.
Judgment: The court held that the Home Secretary acted ultra vires by not following the statutory duty to implement the scheme.
Significance: Established that failure to act according to the statutory mandate can invalidate delegated legislation or executive action.
Case 2: Agricultural, Horticultural and Forestry Industry Training Board v. Aylesbury Mushrooms Ltd. (1972) (UK)
Facts: The Board made regulations that were required by the enabling Act to be consulted upon with affected parties. No consultation was held.
Issue: Whether the regulation was valid without consultation.
Judgment: The court held the regulation invalid for procedural ultra vires because the consultation requirement was mandatory.
Significance: Highlights the importance of following procedural requirements in delegated legislation.
Case 3: R. (on the application of Bromley LBC) v. Greater London Council (1983) (UK)
Facts: The Greater London Council issued a by-law banning certain activities in parks.
Issue: Whether the by-law was within the powers delegated.
Judgment: The court held the by-law invalid as it exceeded the powers conferred by the parent statute (substantive ultra vires).
Significance: Shows courts will strike down delegated legislation that goes beyond granted authority.
Case 4: Attorney-General v. Fulham Corporation (1921) (UK)
Facts: Fulham Corporation charged fees for laundry services it was not empowered to provide.
Issue: Whether the fees imposed were valid delegated legislation.
Judgment: The court held the corporation acted ultra vires as it acted beyond its statutory powers.
Significance: Emphasizes the limits of delegated authority and the court's role in enforcing them.
Case 5: Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) (UK)
Facts: A cinema license was restricted to children under 15 on Sundays.
Issue: Whether the condition was lawful.
Judgment: The court established that a decision would be invalid if it was “so unreasonable that no reasonable authority could ever have come to it” (Wednesbury unreasonableness).
Significance: Unreasonableness is a key ground for judicial review of delegated legislation.
Case 6: R. v. Secretary of State for the Home Department, ex parte Pierson (1998) (UK)
Facts: The Secretary of State issued regulations controlling the granting of licences for nightclubs.
Issue: Whether the regulations were valid.
Judgment: The court found the regulations invalid for being unreasonable and beyond the scope of powers.
Significance: Reinforces that delegated legislation must be reasonable and within the scope of the parent Act.
Summary of Judicial Control Grounds
| Ground | Description | Cases |
|---|---|---|
| Ultra Vires | Delegated legislation exceeds or violates statutory powers. | Fulham Corp; Bromley LBC |
| Procedural Ultra Vires | Failure to follow required procedures invalidates the law. | Aylesbury Mushrooms |
| Substantive Ultra Vires | Substance or content exceeds delegated powers. | Bromley LBC |
| Unreasonableness | Law or regulation is irrational or arbitrary. | Wednesbury; Pierson |
| Failure to Act | Statutory duty ignored or improperly exercised. | Fire Brigades Union |
Conclusion
Judicial control ensures that delegated legislation remains within the bounds set by Parliament or the parent legislation, respects procedural safeguards, and is reasonable. This control upholds the Rule of Law by preventing administrative overreach and protecting individuals from arbitrary or unlawful regulatory actions.
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