Study on Judicial control over delegated legislation
Judicial Control Over Delegated Legislation
What is Delegated Legislation?
Delegated legislation (also called subordinate or subsidiary legislation) refers to rules, regulations, by-laws, or orders made by an authority (usually an administrative or executive body) under powers delegated by Parliament through an enabling or parent Act.
It allows detailed laws to be created without the need for Parliament to pass a new statute every time.
Need for Judicial Control
Although delegated legislation expedites governance, it can potentially be misused or overstepped.
Hence, judicial control ensures that delegated legislation:
Stays within the powers granted by the parent statute (ultra vires doctrine).
Respects constitutional and procedural requirements.
Does not violate fundamental rights or principles of natural justice.
Grounds for Judicial Review of Delegated Legislation
Judicial control can be exercised on the following grounds:
1. Ultra Vires (Beyond Powers)
If the delegated legislation goes beyond the authority conferred by the parent Act, it is invalid.
2. Procedural Impropriety
Failure to follow mandatory procedures prescribed by law.
3. Unreasonableness
If the legislation is arbitrary, oppressive, or unreasonable (Wednesbury principle).
4. Conflict with Parent Act
If it contradicts or is inconsistent with the parent statute.
5. Violation of Fundamental Rights
If it infringes constitutional or fundamental rights beyond reasonable limits.
Important Case Laws on Judicial Control Over Delegated Legislation
Case 1: Attorney General v Fulham Corporation [1921] 1 Ch 440
Facts:
Fulham Corporation, authorized by statute to provide washing facilities, operated a laundry service.
The corporation extended this to private laundry services beyond statutory powers.
Court’s Decision:
Held that the corporation acted ultra vires (beyond the powers).
The delegated legislation authorizing the service was invalid.
Significance:
Established the ultra vires doctrine in delegated legislation.
Public bodies must act strictly within statutory limits.
Case 2: R (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3
Facts:
Challenge to the Hybrid Bill authorizing the HS2 high-speed rail project on grounds of improper delegation and procedural failings.
Court’s Decision:
Judicial scrutiny confirmed strict adherence to statutory and procedural frameworks is necessary.
Significance:
Illustrates modern judicial control ensuring delegated legislation complies with statutory requirements and procedural safeguards.
Case 3: R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513
Facts:
Home Secretary decided not to implement a statutory compensation scheme, instead using prerogative powers to introduce a new one.
Court’s Decision:
The court held the Secretary’s action ultra vires since it conflicted with statutory duty.
Significance:
Demonstrates that delegated powers cannot override explicit statutory mandates.
Reinforces judicial control to prevent executive overreach.
Case 4: Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] AC 524
Facts:
The Board made a regulation for levy collection without proper consultation.
Court’s Decision:
The regulation was held invalid for procedural impropriety as consultation was mandatory.
Significance:
Emphasizes procedural safeguards in delegated legislation.
Courts will invalidate delegated legislation if prescribed procedures are ignored.
Case 5: R v Secretary of State for Social Services, ex parte Association of Metropolitan Authorities [1986] AC 696
Facts:
The Secretary of State imposed financial limits on local authorities without proper consultation.
Court’s Decision:
The delegated legislation was quashed for failure to consult, violating statutory procedure.
Significance:
Affirms that statutory procedural requirements must be complied with.
Case 6: Wednesbury Corporation v Ministry of Housing and Local Government [1966] 2 QB 274
Facts:
Delegated powers used to control housing policy.
Court’s Decision:
Introduced the test of reasonableness (Wednesbury unreasonableness).
Delegated legislation may be challenged if it is so unreasonable no reasonable authority would have made it.
Significance:
Provides a standard of judicial review on substantive grounds of delegated legislation.
Summary Table of Grounds and Corresponding Cases
| Grounds for Judicial Control | Explanation | Illustrative Case |
|---|---|---|
| Ultra Vires | Delegated legislation exceeds statutory powers | Attorney General v Fulham Corporation |
| Procedural Impropriety | Failure to follow mandatory legal procedures | Aylesbury Mushrooms Ltd |
| Unreasonableness | Arbitrary or irrational delegated legislation | Wednesbury Corporation |
| Conflict with Parent Act | Contradiction to the parent statute | Fire Brigades Union |
| Violation of Fundamental Rights | Infringement of constitutional rights | HS2 Action Alliance Ltd (procedural rights) |
Conclusion
Judicial control over delegated legislation serves as a crucial check on the exercise of delegated powers.
It ensures that such legislation:
Is within legal authority,
Follows statutory procedures,
Is reasonable and consistent with parent Acts,
Respects fundamental rights.
Courts have developed robust doctrines—particularly ultra vires and procedural fairness—to scrutinize delegated legislation.
This control balances the need for efficient governance through delegated legislation with the need for legal accountability and protection of rights.
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