Delegated Legislations in UK
Delegated Legislation in the UK: Detailed Explanation with Case Law
1. Introduction
Delegated legislation (also known as subordinate legislation or secondary legislation) refers to laws made by an individual or body other than the Parliament, but with the Parliament's authority. It enables the government to make detailed laws and regulations under powers granted by a parent Act (also called the enabling or empowering Act).
2. Why Delegated Legislation?
Parliament is the supreme legislative body but cannot practically make every detailed rule.
Delegated legislation allows flexibility, speed, and technical expertise.
It helps fill in gaps left by the primary legislation.
3. Types of Delegated Legislation
A. Statutory Instruments (SIs)
Most common form.
Includes regulations, rules, orders made by government ministers.
B. By-laws
Made by local authorities or corporations under powers granted by Parliament.
Applies locally (e.g., traffic regulations, public behavior).
C. Orders in Council
Made by the Queen and Privy Council.
Often used for emergencies or transferring responsibilities between departments.
4. Parliamentary Control
Affirmative resolution procedure: Some SIs must be approved by Parliament.
Negative resolution procedure: Some SIs become law unless annulled by Parliament within a time frame.
Scrutiny Committees: Joint Committee on Statutory Instruments examines legality and technical correctness.
5. Judicial Control
Courts review delegated legislation to ensure it is within the powers granted by the enabling Act and complies with principles of natural justice and the Rule of Law.
6. Important Case Laws on Delegated Legislation
1. R. v. Secretary of State for the Home Department, ex parte Fire Brigades Union (1995) AC 513
Facts:
The Home Secretary decided not to bring into force a statutory compensation scheme, substituting a new, less generous scheme instead.
Issue:
Whether the Home Secretary had the power to change the scheme without Parliament’s approval.
Holding:
The House of Lords held that the Home Secretary acted beyond the powers granted by the enabling Act.
Reasoning:
The Home Secretary must act according to the terms of the Act.
Discretion cannot be used to frustrate the intention of Parliament.
Significance:
Reinforced the principle that delegated legislation must conform to the enabling Act.
Executive actions beyond statutory authority can be quashed.
2. Associated Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223
Facts:
Wednesbury Corporation imposed a condition prohibiting children under 15 from attending Sunday cinema shows.
Issue:
Whether the corporation's discretion was legally exercised.
Holding:
The court held that discretion should not be overturned unless it was so unreasonable that no reasonable authority could have imposed it ("Wednesbury unreasonableness").
Reasoning:
Courts will not interfere with discretionary decisions unless they are irrational or perverse.
The Wednesbury test sets a high threshold for judicial intervention.
Significance:
Established the standard of judicial review of delegated legislation and administrative decisions.
3. R. v. Agricultural, Horticultural and Forestry Industry Training Board, ex parte FIFCO (Grampian) Ltd. (1989) 1 WLR 293
Facts:
The Training Board issued an order regulating training that was challenged as exceeding powers.
Issue:
Whether the order was ultra vires (beyond powers).
Holding:
The court held the order was intra vires as it was within the scope of the enabling Act.
Reasoning:
Delegated legislation must be consistent with the purpose and terms of the empowering Act.
Courts review whether the legislation stays within the ambit of the delegated authority.
Significance:
Reinforced the doctrine of ultra vires in controlling delegated legislation.
4. R. v. Home Secretary, ex parte Simms (1999) 2 AC 115
Facts:
Prisoners claimed their right to confidential interviews with journalists was unlawfully restricted by delegated rules.
Issue:
Whether delegated legislation could restrict fundamental rights without explicit statutory authorization.
Holding:
The House of Lords held that fundamental rights cannot be curtailed by implied powers; clear statutory authority is required.
Reasoning:
Delegated legislation cannot override fundamental rights.
Courts protect rights from unlawful executive interference.
Significance:
Established that delegated legislation is subject to human rights considerations.
Acts as a limit on the scope of delegated powers.
5. Boddington v. British Transport Police (1999) 2 AC 143
Facts:
The appellant was fined under a railway regulation made by delegated legislation for smoking on a train.
Issue:
Whether delegated legislation could be challenged in criminal proceedings.
Holding:
The House of Lords allowed the challenge, confirming the right to question the validity of delegated legislation even in criminal cases.
Reasoning:
Delegated legislation must be within legal powers.
Defendants can raise ultra vires arguments as a defense.
Significance:
Confirms judicial control over delegated legislation extends to criminal law.
Protects individuals against unlawful subordinate laws.
7. Summary: Controls on Delegated Legislation
| Control Type | Description |
|---|---|
| Parliamentary | Affirmative and negative resolution |
| Judicial | Ultra vires, procedural fairness, fundamental rights |
| Procedural | Requirement for consultation, publication |
| Political | Accountability to Parliament and public |
8. Conclusion
Delegated legislation is essential for the efficient functioning of the UK’s legal system. However, it must operate within strict legal boundaries, respecting the intention of Parliament and fundamental rights. Judicial review ensures delegated legislation adheres to the Rule of Law and does not become a tool for unchecked executive power.
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