Delegated Legislation
What is Delegated Legislation?
Delegated Legislation, also known as subordinate legislation or secondary legislation, refers to laws made by an authority other than the legislature (Parliament), but with the legislature’s permission. The primary legislation (an Act of Parliament) delegates the power to make detailed rules, regulations, or orders to a government minister, local authority, or another body.
Why is Delegated Legislation Necessary?
Technical expertise: Some laws require detailed knowledge that Parliament may not possess.
Time-saving: Parliament cannot legislate on every detailed matter, so it delegates.
Flexibility: It allows quick amendments in response to changing conditions.
Local needs: Delegation to local authorities helps address regional or local issues.
Types of Delegated Legislation
Statutory Instruments (SIs): Made by government ministers.
By-laws: Made by local authorities or corporations.
Orders in Council: Made by the Queen and Privy Council, often in emergencies.
Control of Delegated Legislation
Parliamentary control: Through affirmative or negative resolution procedures.
Judicial control: Courts can declare delegated legislation ultra vires (beyond the powers granted).
Procedural safeguards: Including consultation, publication, and review.
Important Case Laws on Delegated Legislation
1. Agricultural, Horticultural and Forestry Training Board v. Aylesbury Mushrooms Ltd. (1972)
Facts: The Agricultural Training Board made regulations requiring employers to provide training, but the regulations were challenged for being made without proper consultation.
Held: The court held the regulations were ultra vires (beyond the powers) because the enabling Act required consultation before making regulations, which was not done.
Principle: If the delegated legislation does not follow the procedures laid down in the parent Act (like consultation), it can be invalidated.
2. R v. Home Secretary, ex parte Fire Brigades Union (1995)
Facts: The Home Secretary promised compensation under a statutory scheme but later abandoned it, relying on delegated legislation powers.
Held: The court held that the Home Secretary acted ultra vires by not implementing the statutory scheme as required by Parliament.
Principle: Delegated legislation cannot be used to frustrate the intention of the parent Act.
3. Council of Civil Service Unions v. Minister for the Civil Service (1985) (The GCHQ Case)
Facts: The government banned trade union membership at GCHQ by an Order in Council, citing national security.
Held: The court ruled that the exercise of prerogative powers is subject to judicial review, but national security matters are generally non-justiciable.
Principle: Delegated legislation is subject to judicial review, but some grounds like national security may limit the court’s intervention.
4. R (on the application of Blewett) v. Home Secretary (2004)
Facts: Blewett challenged a statutory instrument regarding prisoners’ voting rights.
Held: The court ruled the statutory instrument was ultra vires as it went beyond the powers granted by the enabling Act.
Principle: Delegated legislation must strictly conform to the scope of authority granted by Parliament.
5. Smith v. East Elloe Rural District Council (1956)
Facts: A local authority made a by-law regulating the use of footpaths, but it was challenged for being unreasonable.
Held: The by-law was valid as it was made within the powers granted by Parliament and was reasonable.
Principle: Delegated legislation must be reasonable and made within the scope of the enabling Act.
Summary of Principles from These Cases
Procedural compliance: Failure to comply with procedural requirements (like consultation) can invalidate delegated legislation (Aylesbury Mushrooms).
Scope of power: Delegated legislation must not exceed the powers given by the parent Act (Blewett, Fire Brigades Union).
Judicial review: Courts can review delegated legislation for legality, reasonableness, and conformity with parent Acts (GCHQ Case).
Reasonableness: Delegated legislation must be reasonable and not arbitrary (Smith v. East Elloe RDC).
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