Delegated Legislation in United Kingdom- Administrative Law
Delegated Legislation in the United Kingdom: Detailed Explanation
What is Delegated Legislation?
Delegated Legislation (also called subordinate legislation) is law made by an individual or body other than Parliament, but with Parliament’s authority.
It is a mechanism through which Parliament delegates its legislative powers to the executive or other authorities to make detailed rules, regulations, or orders.
It supplements the Acts of Parliament by filling in details or administrative provisions which Parliament either cannot or does not wish to legislate on directly.
Why is Delegated Legislation Used in the UK?
Efficiency: Parliament cannot legislate on every detailed or technical matter.
Expertise: Delegated bodies or officials have specialized knowledge.
Flexibility: Laws can be quickly updated without needing a new Act.
Volume of legislation: Reduces parliamentary workload.
Types of Delegated Legislation
Statutory Instruments (SIs): The most common form, covering rules, regulations, or orders.
By-laws: Made by local authorities or corporations under powers granted by Parliament.
Orders in Council: Made by the Queen and Privy Council, often used in emergencies.
Rules and Regulations: Made by government ministers or other authorities.
Control of Delegated Legislation
Parliamentary Control:
Affirmative Resolution Procedure: Delegated legislation must be explicitly approved by Parliament.
Negative Resolution Procedure: Legislation becomes law unless Parliament objects within a specified period.
Judicial Control:
Courts review delegated legislation for ultra vires (beyond legal power) violations.
Judicial review can invalidate delegated legislation if it exceeds the powers granted or is unreasonable or unlawful.
Key Legal Principles
Ultra Vires Doctrine: Delegated legislation must be within the powers granted by the enabling Act.
Delegated legislation cannot:
Contradict or override the parent Act.
Breach fundamental rights unless expressly authorized.
Go beyond the scope or purpose of the enabling Act.
Courts can intervene if delegated legislation is irrational, procedural unfair, or unconstitutional.
Important UK Case Laws on Delegated Legislation
1. R (on the application of Miller) v Secretary of State for Exiting the European Union (2017)
Facts: The government attempted to use delegated powers to trigger Article 50 to leave the EU without parliamentary approval.
Issue: Whether the government could use delegated legislation to trigger such a major constitutional change.
Holding: The Supreme Court ruled it was ultra vires to use delegated powers for this purpose; explicit parliamentary approval was needed.
Significance: Highlighted limits on delegated legislation for major constitutional matters.
2. Council of Civil Service Unions v Minister for the Civil Service (1985) (GCHQ Case)
Facts: The government used delegated powers to prohibit trade union membership at GCHQ without consultation.
Issue: Whether the use of delegated legislation was lawful.
Holding: The Court held that delegated powers are subject to judicial review, except where national security is concerned.
Significance: Established that delegated legislation is subject to judicial scrutiny for procedural fairness unless overridden by national security concerns.
3. R v Home Secretary, ex parte Fire Brigades Union (1995)
Facts: The Home Secretary failed to implement a compensation scheme authorized by an enabling Act.
Issue: Whether the Home Secretary was obliged to implement delegated legislation.
Holding: The Court ruled that delegated powers must be exercised in accordance with the enabling Act and cannot be arbitrarily withheld.
Significance: Clarified that delegated powers come with legal obligations and cannot be ignored.
4. Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd (1972)
Facts: The Training Board made regulations without consulting affected parties.
Issue: Whether failure to consult rendered the delegated legislation invalid.
Holding: The Court held the regulations were ultra vires as consultation was a mandatory procedural requirement.
Significance: Highlighted that procedural requirements must be followed in delegated legislation.
5. R v Secretary of State for the Environment, ex parte Spath Holme Ltd (2001)
Facts: The government introduced regulations to control waste management.
Issue: Whether the regulations went beyond the powers granted by the enabling Act.
Holding: The Court ruled the delegated legislation was valid as it was within the scope of the parent Act.
Significance: Confirmed that as long as delegated legislation is within scope, courts uphold it.
Summary Table of Principles and Cases
| Principle | Case Example | Significance |
|---|---|---|
| Ultra vires doctrine | Miller v Secretary of State | Limits delegated legislation use in major constitutional changes. |
| Judicial review for fairness | GCHQ Case | Delegated powers subject to procedural fairness scrutiny. |
| Obligations to exercise powers | Fire Brigades Union | Delegated powers cannot be ignored. |
| Procedural requirements | Aylesbury Mushrooms | Mandatory procedures must be followed. |
| Scope of enabling Act | Spath Holme | Legislation within scope is valid. |
Conclusion
Delegated legislation is a vital part of the UK’s legislative system, enabling detailed and technical rules to be made efficiently. However, it is strictly controlled by both Parliament and courts to ensure it remains within the bounds of authority, respects procedural fairness, and upholds the rule of law.
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