Delegated Legislation in United Kingdom- Administrative Law
Delegated Legislation in the United Kingdom: Detailed Explanation
What is Delegated Legislation?
Delegated legislation, sometimes called secondary or subordinate legislation, refers to laws made by an individual or body other than Parliament but with Parliament’s authority. It is a way for Parliament to delegate the power to make detailed rules or regulations to government ministers, local authorities, or other bodies.
Why is Delegated Legislation Used?
Efficiency: Parliament cannot deal with the details of every law.
Technical expertise: Specialists can draft detailed rules (e.g., health and safety regulations).
Flexibility: It allows laws to be amended or updated quickly.
Local knowledge: Local authorities can create regulations suited to local needs.
Forms of Delegated Legislation
Statutory Instruments (SIs): The most common form, used mainly by government ministers.
By-laws: Made by local authorities or certain corporations for local regulation.
Orders in Council: Made by the Privy Council, often used in emergencies or to implement EU law.
Parliamentary Control of Delegated Legislation
Parliament controls delegated legislation through:
Enabling Act: The parent Act defines the scope of delegated powers.
Scrutiny Committees: Examine delegated legislation.
Procedures: Negative resolution procedure (comes into effect unless rejected) and affirmative resolution procedure (must be approved).
Judicial Control of Delegated Legislation
Courts can review delegated legislation to ensure it:
Is within the powers given by the enabling Act (no ultra vires).
Does not violate fundamental rights.
Is not unreasonable or irrational.
Important Case Laws on Delegated Legislation in the UK
1. Agricultural Training Board v Aylesbury Mushrooms Ltd (1972)
Issue: Whether a piece of delegated legislation was valid despite procedural errors.
Facts: The Agricultural Training Board made regulations requiring mushroom growers to pay a training levy. The Board failed to consult one interested party as required by the enabling Act.
Ruling: The court held the regulations were invalid because the Board did not follow the mandatory procedure.
Importance: Established that delegated legislation can be struck down if mandatory procedural requirements are not followed (procedural ultra vires).
2. R v Secretary of State for the Home Department, ex parte Fire Brigades Union (1995)
Issue: Whether the government could frustrate the purpose of an enabling Act by failing to bring certain delegated legislation into force.
Facts: The government delayed implementing a new compensation scheme for firefighters, effectively continuing the old scheme.
Ruling: The House of Lords ruled the government had acted unlawfully by frustrating Parliament’s intent.
Importance: Reinforces that delegated legislation must be exercised consistent with the enabling Act’s purpose.
3. Council of Civil Service Unions v Minister for the Civil Service (1985) — GCHQ Case
Issue: Whether a government decision affecting workers’ rights was subject to judicial review despite being related to national security.
Facts: The government banned union membership at GCHQ for security reasons without consultation.
Ruling: The court held that prerogative powers (like delegated legislation) could be subject to judicial review, although the decision was justified due to national security.
Importance: Clarified that delegated legislation and executive decisions can be reviewed by courts for legality, even if they involve prerogative powers.
4. R (on the application of Association of British Pharmaceutical Industries) v Secretary of State for Trade and Industry (2004)
Issue: Whether the delegated legislation conflicted with EU law.
Facts: The Secretary of State issued regulations that were challenged as inconsistent with EU rules.
Ruling: The court struck down the delegated legislation for being inconsistent with superior EU law.
Importance: Demonstrates that delegated legislation must comply with domestic and international law (including EU law, historically).
5. R (on the application of Miller) v Secretary of State for Exiting the European Union (2017)
Issue: Whether the government could use delegated legislation (a “Henry VIII clause”) to trigger Article 50 and begin Brexit without Parliamentary approval.
Facts: The government tried to rely on powers delegated under the European Communities Act 1972.
Ruling: The Supreme Court ruled that the government cannot use delegated legislation to change fundamental rights or trigger significant constitutional changes without explicit Parliamentary approval.
Importance: Limits the scope of delegated legislation when fundamental constitutional changes are involved.
Summary of Key Principles from These Cases
| Case | Principle |
|---|---|
| Aylesbury Mushrooms | Procedural ultra vires invalidates legislation |
| Fire Brigades Union | Delegated legislation must fulfill the purpose of the enabling Act |
| GCHQ Case | Delegated legislation subject to judicial review |
| Pharmaceutical Industries | Delegated legislation must comply with higher laws (EU/domestic) |
| Miller (Brexit Case) | Fundamental constitutional changes require explicit Parliamentary approval |
Conclusion
Delegated legislation is a vital tool in UK administrative law, enabling efficient and specialized rule-making within limits set by Parliament and the courts. The judiciary plays a crucial role in ensuring that delegated legislation is lawful, follows required procedures, and respects constitutional principles.
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