Evaluating the legitimacy of delegated legislation in modern governance
Evaluating the Legitimacy of Delegated Legislation in Modern Governance
1. Introduction to Delegated Legislation
Delegated legislation, also known as subordinate or secondary legislation, refers to laws or regulations made by an authority other than the legislature, under powers granted by an Act of Parliament or primary legislation.
Purpose: It allows for detailed rules and regulations to be made without requiring a new Act of Parliament for every detail, enabling flexible, efficient, and expert law-making.
2. Importance of Legitimacy
The legitimacy of delegated legislation is crucial because it affects:
Rule of Law: Delegated legislation must conform to the authority granted by Parliament.
Democratic Accountability: Parliament remains sovereign, so delegated legislation must not overstep.
Legal Certainty: Citizens must be able to understand and predict the law.
Checks and Balances: Control mechanisms must prevent abuse of delegated powers.
3. Grounds for Evaluating Legitimacy
The courts assess delegated legislation mainly on the following grounds:
Ultra Vires (Beyond Power): Whether the delegated legislation exceeds the authority granted by the enabling Act.
Procedural Impropriety: Whether the proper procedures (such as consultation or publication) were followed.
Unreasonableness: Whether the legislation is so unreasonable that no reasonable authority could have made it.
Consistency with Higher Law: Must not conflict with primary legislation or constitutional principles.
4. Landmark Cases on Delegated Legislation and Legitimacy
(A) Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1948)
Facts: The Wednesbury Corporation imposed a condition on a cinema license prohibiting children under 15 from attending on Sundays. The cinema company challenged this as unreasonable.
Issue: Whether the local authority’s delegated power was exercised unreasonably.
Held: The court established the "Wednesbury unreasonableness" test — delegated legislation will be invalidated only if it is so unreasonable that no reasonable authority could have imposed it.
Significance: This case sets a high threshold for courts to interfere with delegated legislation based on unreasonableness.
(B) R (on the application of Miller) v. Secretary of State for Exiting the European Union (2017)
Facts: The UK government sought to trigger Article 50 (to leave the EU) via the royal prerogative without parliamentary approval.
Issue: Whether the government could use delegated powers or prerogative powers to change domestic law affecting rights without Parliament.
Held: The Supreme Court ruled that the government could not trigger Article 50 without an Act of Parliament authorizing it, emphasizing parliamentary sovereignty.
Significance: This case reinforces that delegated legislation or prerogative powers cannot be used to alter fundamental rights or constitutional principles without clear parliamentary authorization.
(C) R (on the application of Quintavalle) v. Secretary of State for Health (2003)
Facts: The Secretary of State issued regulations extending legislation to include embryos created by cell nuclear replacement (cloning) without explicit parliamentary approval.
Issue: Whether the delegated legislation went beyond the powers conferred by the enabling Act.
Held: The court held the regulations were valid because the enabling Act allowed for "regulations" covering new scientific developments.
Significance: Shows that delegated legislation can be broad if Parliament’s intent is clear but must stay within granted powers.
(D) Carltona Ltd v. Commissioners of Works (1943)
Facts: The Minister of Works delegated decision-making powers to civil servants without direct statutory authorization.
Issue: Whether such delegation was lawful.
Held: The court held that powers given to a minister could be exercised by responsible officials in the minister's department (the "Carltona principle").
Significance: Validated practical delegation within government departments, reinforcing the legitimacy of delegated decision-making under the authority of the minister.
(E) R v. Home Secretary, ex parte Fire Brigades Union (1995)
Facts: The Home Secretary failed to bring into effect a statutory compensation scheme, opting instead to introduce a different scheme by delegated legislation.
Issue: Whether the failure to exercise statutory powers in accordance with Parliament’s intention was lawful.
Held: The court held that the Home Secretary could not frustrate the will of Parliament by refusing to implement statutory schemes.
Significance: Delegated legislation must conform to Parliament’s clear intentions and cannot be used to subvert them.
5. Summary Table of Key Cases
| Case | Year | Key Issue | Principle Established |
|---|---|---|---|
| Associated Provincial Picture Houses | 1948 | Unreasonableness | Courts intervene only on extreme unreasonableness (Wednesbury test) |
| R (Miller) v. Secretary of State for EU | 2017 | Limits on prerogative powers | Fundamental changes require explicit parliamentary approval |
| R (Quintavalle) v. Secretary of State | 2003 | Scope of delegated powers | Delegated legislation valid if within broad powers granted |
| Carltona Ltd v. Commissioners | 1943 | Delegation within government | Ministers can delegate powers to officials (Carltona principle) |
| R v. Home Secretary ex parte Fire Brigades Union | 1995 | Compliance with parliamentary intent | Delegated legislation cannot subvert Parliament’s clear will |
6. Additional Considerations
Parliamentary Control: Mechanisms such as affirmative and negative resolution procedures allow Parliament to scrutinize delegated legislation.
Judicial Review: Courts act as a check to ensure delegated legislation stays within legal bounds.
Transparency and Consultation: Legitimate delegated legislation often involves consultation and publication to ensure fairness.
Modern Challenges: The increasing use of delegated legislation raises questions about democratic legitimacy and accountability.
7. Conclusion
The legitimacy of delegated legislation in modern governance hinges on adherence to the enabling Act’s authority, respect for parliamentary sovereignty, proper procedures, and reasonableness. The courts have developed doctrines like the Wednesbury unreasonableness test and Carltona principle to balance flexibility in law-making with democratic accountability and legal certainty.
RELATED Blog
0 comments