Definiion of delegated legislation: An analysis
Definition of Delegated Legislation: An Analysis
What is Delegated Legislation?
Delegated legislation, also known as subordinate or secondary legislation, refers to laws or regulations made by an authority or body other than the legislature, but which derive their authority from an Act of Parliament (the enabling or parent Act). In other words, Parliament delegates some of its law-making powers to other bodies or officials.
Why is Delegated Legislation Necessary?
Volume and Complexity: Parliament cannot deal with every detail of lawmaking.
Technical Expertise: Specialized bodies (ministries, agencies) have better knowledge to draft detailed regulations.
Flexibility and Speed: Laws can be adapted quickly to changing circumstances without needing a full parliamentary process.
Local or Specific Needs: Allows local authorities or specialized agencies to regulate specific matters.
Formal Definitions from Authorities
Dicey: Defined delegated legislation as legislation made by some person or body other than Parliament, but with Parliament’s authority.
Lord Greene MR (in Wednesbury case) emphasized that delegated legislation is law made by persons other than Parliament, acting under powers conferred by Parliament.
J.C. Jenkins: Describes delegated legislation as “laws made by authorities other than Parliament, but with the authority of Parliament.”
Analysis of Delegated Legislation
Nature: It is a form of legislative delegation, where Parliament passes an enabling statute specifying the framework and grants powers to delegated bodies.
Limits: Delegated legislation cannot exceed or contradict the parent Act.
Types:
Statutory Instruments (most common, made by ministers)
By-laws (made by local authorities or corporations)
Orders in Council (made by the Privy Council)
Control: Parliament and courts supervise delegated legislation to ensure legality.
Important Case Laws Illustrating Delegated Legislation
1. Attorney-General v De Keyser's Royal Hotel Ltd (1920)
Facts: During WWI, the government requisitioned a hotel under royal prerogative, bypassing statutory powers.
Ruling: The court held that when statute grants powers, the government cannot rely on prerogative powers, but must use statutory powers.
Significance: Established that delegated legislation (or statutory powers) overrides prerogative powers when Parliament has legislated.
2. R v Secretary of State for the Home Department, ex parte Fire Brigades Union (1995)
Facts: The Home Secretary failed to bring into force delegated legislation (a compensation scheme) required by the enabling Act.
Ruling: The court held the failure unlawful as it frustrated Parliament’s intention.
Significance: Delegated legislation must be exercised in line with the enabling Act’s purpose.
3. Aylesbury Mushrooms Ltd v Ministry of Agriculture (1972)
Facts: Delegated legislation was challenged due to failure to consult interested parties as required by the parent Act.
Ruling: The court held the delegated legislation invalid because mandatory procedural requirements were ignored.
Significance: Emphasized procedural ultra vires — failure to follow procedural requirements can invalidate delegated legislation.
4. R (on the application of Quintavalle) v Secretary of State for Health (2003)
Facts: Delegated legislation about the regulation of embryos was challenged on the ground it went beyond the powers given by Parliament.
Ruling: The court held the delegated legislation was ultra vires because it extended beyond the parent Act’s scope.
Significance: Illustrates substantive ultra vires — delegated legislation cannot exceed the limits set by Parliament.
5. Burmah Oil Co. Ltd v Lord Advocate (1965)
Facts: The government compensated Burmah Oil for damage during war but later Parliament passed legislation to nullify compensation.
Ruling: The case shows Parliament’s supremacy over delegated legislation and that Parliament can overturn decisions made under delegated legislation.
Significance: Reinforces that delegated legislation is subordinate to parliamentary statute.
Summary Table of Key Principles
| Case | Principle | Explanation |
|---|---|---|
| De Keyser’s Royal Hotel | Statutory power overrides prerogative | Delegated powers must be used when statute grants them |
| Fire Brigades Union | Must comply with enabling Act's purpose | Delegated legislation must be exercised properly |
| Aylesbury Mushrooms | Procedural ultra vires | Mandatory procedures must be followed |
| Quintavalle | Substantive ultra vires | Delegated legislation must not exceed power |
| Burmah Oil | Parliamentary sovereignty | Parliament can override delegated legislation |
Conclusion
Delegated legislation is essential for efficient and flexible lawmaking but operates strictly within the bounds set by Parliament. Courts have developed doctrines like ultra vires (both procedural and substantive) to ensure that delegated legislation does not exceed its lawful authority.
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