English Legal System Delegated Legislation

Delegated Legislation

Acts of Parliament are only a small part of the annual legislative output. Statutory Instruments (which are themselves only one kind of delegated legislation) outnumber Public General Acts by a factor of twenty and outweigh them by a factor of five. Delegated legislation (sometimes called secondary legislation or subordinate legislation) stems from an enabling Act of Parliament which authorises someone else (i.e. other than Parliament) to make laws on certain matters. Legislative powers are most often delegated to Government ministers, but may also be delegated to local authorities, professional and other public bodies, public utility companies (even after privatisation) and a variety of other organisations and individuals.

Road Traffic Act 1988 s.17(1)

The Secretary of State may make regulations prescribing (by reference to shape, construction or any other quality) types of helmet recommended as affording protection to persons on or in motor cycles … from injury in the event of accident.

Local Government Act 1972 s.235

[A District Council] may make bye-laws for the good rule and government of the whole or any part of the District … and for the prevention of nuisances therein.

Courts Act 2003 s.69

(1) There are to be rules of court (to be called “Criminal Procedure Rules”) governing the practice and procedure to be followed in the criminal courts.

(2) Criminal Procedure Rules are to be made by a committee known as the Criminal Procedure Rule Committee.

Solicitors Act 1974 s.31(1)

The Council [of the Law Society] may, if they think fit, make rules … for regulating the professional practice, conduct and discipline of solicitors.

Church of England (Worship and Doctrine) Measure 1974 s.1(1)

It shall be lawful for the General Synod to make provision by Canon with respect to worship in the Church of England …

Railways Act 1993 s.129(1)

An independent railway operator may make bye-laws regulating … the conduct of all persons while on [trains or railway property].

National Trust Act 1907 s.33

The National Trust may in respect of any building forming part of the Trust property make byelaws …

There are several reasons why Parliament should delegate legislative power in this way. The most obvious is a practical one: Parliament does not have time to debate all the many laws that must be passed to ensure the smooth running of a complex modern society. It does not really have time to deal properly with all the primary legislation, and could not possibly fit in all the secondary legislation as well. Some laws (such as the Building Regulations or the Bee Diseases Order) require considerable technical expertise, while others such as the Clifton & Durdham Downs Bye-Laws are best made by people with local knowledge. Moreover, delegated legislation such as the various Foot and Mouth Disease Regulations can be made quickly in times of emergency, while minor changes such as amendments to the National Curriculum do not really need to be discussed by both Houses of Parliament.

Delegated legislation may be known by various names, but the same basic principles apply whatever name it is given.

Power delegated to Ministers is usually exercised by Statutory Instrument; the legislation itself may be called Regulations (e.g. the Road Vehicles (Display of Registration Marks) Regulations 2001, or Orders (e.g. the York Sixth Form College (Dissolution) Order 1999) or Rules (e.g. the Prison Rules 1999), or sometimes something else.

A very common form of statutory instrument is the Commencement Order, which brings an Act of Parliament into force a bit at a time. For example, the Constitutional Reform Act 2005 has been the subject of nine Commencement Orders so far (up to January 2008) and is still not wholly in force.

Some Government powers are exercised by Order in Council; three or four Privy Councillors (usually Cabinet Ministers) meet with Her Majesty to give formal approval to Orders drafted by the government. For example, the Consumer Protection Act 1987 (Product Liability) (Modification) Order 2000 extended the scope of consumer protection law to agricultural products, to comply with a European Directive.

Orders in Council are also used when the Government exercises powers not formally delegated by Parliament but surviving as part of the “royal prerogative”. Many foreign affairs matters are dealt with in this way, as for example the Afghanistan (United Nations Sanctions) Order 2001. Orders in Council are also used to dissolve Parliament in preparation for a general election, to grant or amend royal charters and university statutes, and in certain kinds of legislation for the Isle of Man, the Channel Islands, and the few remaining Colonies.

Orders in Council having general effect are often treated as if they were Statutory Instruments and are often subject to the same controls: the difference is unimportant for any practical purposes.

Delegated legislation made by local authorities and other organisations is usually called bye-laws (or by-laws – either spelling is acceptable). Within our local area, the City of Bristol has about fifty bye-laws currently in force, covering such matters as the use of public libraries, the fouling of footpaths by dogs, and the employment of children. Bath has (inter alia) bye-laws made under s.235 above making it an offence for a person to consume alcohol in a “designated place” (essentially, any street or open space in the city centre) after being warned by a constable. Both Bath & North East Somerset and South Gloucestershire have bye-laws made under s.15(7) of the Local Government (Miscellaneous Provisions) Act 1982, following a standard pattern adopted by many local authorities across the country) and regulating acupuncture, tattooing and ear piercing, mainly in relation to the general cleanliness of premises and operators and the sterilisation of instruments. North Somerset has made bye-laws under various Acts controlling the use of beaches, and separate bye-laws concerning the use of the model yacht pond in Weston-super-Mare.

Bye-laws can also be made by semi-private bodies such as the National Trust and the Train Operating Companies; these are not merely internal rules, but have the force of law and can be enforced by the courts.

Boddington V British Transport Police [1998] 2 All ER 203, HL

British Rail (shortly before privatisation) made a byelaw under s.67(c) of the Transport Act 1962 as amended, prohibiting smoking where “no smoking” notices were displayed; they subsequently introduced a total ban on some trains and displayed notices to this effect. A smoker A defied this prohibition; he was convicted and fined £10 by the stipendiary magistrate, and his conviction was upheld on appeal.

Note also the increasing use of Codes of Practice with limited legal force. These codes are not usually law as such, but can be referred to when a court has to decide whether or not (for example) a person has behaved reasonably.

The oldest of the current codes is the Highway Code, first authorised by the Road Traffic Act 1930 and now made by the Secretary of State subject to Parliamentary approval. It is not a Statutory Instrument and has no binding force, but breaches of the Code may be used as persuasive evidence in both civil and criminal cases.

Road Traffic Act 1988 s.38(7)

A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings, but any such failure may in any proceedings (whether civil or criminal …) be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question.

The Employment Protection Act 1975 empowers ACAS to issue draft codes of practice which are laid before Parliament for approval or annulment and then given effect by Statutory Instrument. Once again a breach of the Codes does not entail automatic liability, but their provisions are taken into account by industrial tribunals and by courts.

The Health and Safety Commission has power under the Health and Safety at Work Act 1974 to make Codes of Practice subject to the consent of the Secretary of State; no Parliamentary scrutiny is involved.

The Codes of Practice made under the Police and Criminal Evidence Act 1984 are brought into effect by Statutory Instrument (subject to an affirmative resolution of each House) after a consultation period, but are not strictly legislation in themselves. This is because the Home Office wanted the Codes to be complete in themselves (i.e. including and explaining some statutory provisions) and written in simple language (to be understandable by ordinary police officers!), and rightly felt it would be inappropriate for secondary legislation to seek to gloss an Act of Parliament. Breach of the Codes does not in itself give rise to any criminal or civil liability, but may lead to the exclusion of evidence improperly obtained and/or internal disciplinary procedings against police officers.

The Press Code of Practice is made by the Press Complaints Commission and has no statutory basis at all. However, s.12 of the Human Rights Act 1998 refers expressly to the importance of considering “any relevant code of practice” when a court is trying to resolve a conflict between (for example) a right of privacy and a right of free expression, and it is generally thought that compliance with the Code would be relevant in determining whether or not a journalist’s conduct was reasonable for the purposes of the Protection from Harassment Act 1997.

Parliamentary Controls

Delegated legislative powers are only as extensive as Parliament chooses to make them in the enabling Act, and a number of safeguards can be built in against abuse.

There is no common law duty for Ministers or Departments to consult with outsiders before making regulations, but such a duty is often imposed by the enabling statute and consultation is common practice even where it is not obligatory. Indeed, one of the advantages of delegated legislation is the opportunity it gives for experts outside the Government to influence its content. The Act may therefore require the Minister or other legislator to consult with specified people or organisations before using his powers: even if he does not need the consultees’ approval, it gives them the opportunity to point out any obvious flaws in the Minister’s proposals and perhaps to rally support elsewhere.

Agricultural Training Board V Aylesbury Mushrooms [1972] 1 All ER 280, Donaldson J

Legislation required the Minister to consult relevant bodies before making Orders of a certain type, and through a clerical error there was no consultation with the Mushroom Growers’ Association (who were conceded to be a “relevant body” for this purpose). The court ruled that the consultation requirement was mandatory, and that its breach made the Order invalid as far as mushroom growers were concerned.

Where legislative power is given to Ministers, the enabling legislation usually requires a statutory instrument (or a draft of it) to be laid before Parliament before or soon after it comes into effect. A Select Committee of MPs and peers scrutinises all such instruments and reports to Parliament, drawing particular attention to any statutory instrument that imposes taxation (a jealously-guarded privilege of the House of Commons), makes a charge on the Revenue, purports to be immune from challenge in the courts, purports to operate retrospectively, has been unreasonably delayed in publication, makes unusual or unexpected use of the powers granted, appears to be ultra vires the parent Act, or appears to be badly drafted and confusing. Members of Parliament are then able to question the responsible Minister about any statutory instrument that seems to be unsatisfactory in some way, and perhaps to take further action.

In particular, the enabling Act may provide for the SI to require an affirmative resolution of each House in order for them to take effect. This is less than the full enactment procedure for primary legislation – a short debate (perhaps) and a single vote in each House, with no Committee or Report stage – but is still quite a strong control. This “affirmative resolution” procedure is therefore used most often where the powers delegated are particularly wide-ranging, as in the Emergency Powers Act 1920 and the Human Rights Act 1998.

For example, section 175(4) of the Gambling Act 2005 authorises the Secretary of State to make an order determining the geographical distribution of casino licences, but section 355(6) says that such an order shall not be made unless a draft has first been approved by resolution of each House of Parliament. On 28 March 2007 the House of Lords voted against the draft order establishing the first regional casino in Manchester – a rare example of this control in operation.

Alternatively, the enabling legislation may make the SI subject to annulment by either House within a fixed period (usually 40 days); it may come into force immediately, subject to cancellation, or it may not come into force until the 40 days have passed without a successful challenge. This is the procedure more commonly adopted, and applies in about three-quarters of cases. It is much weaker than the “affirmative resolution” procedure: very few “negative resolution” SIs are debated, and hardly any are ever annulled.

Finally, the enabling Act may not specify either of these procedures at all, leaving the Minister to legislate free from any formal control: this is common in respect of Commencement Orders bringing primary legislation into force piece by piece. A motion was proposed in the House of Commons in October 2005 calling on the government to delay indefinitely the full implementation of the Licensing Act 2003, but this was defeated by a substantial majority. There are still political controls, of course – the Minister can be questioned about his actions and even made the subject of a critical vote – and the judicial controls discussed below apply as much to these as to any other statutory instruments.

A, K, M, Q & G V HM Treasury [2008] EWHC 869 (Admin)

The Government made an Order in Council (the Terrorism (United Nations Measures) Order 2006) allowing the Treasury to “designate” individuals suspected of involvement in terrorism, whose assets would then be frozen. Collins J said the Order went beyond what was “necessary and expedient” to fulfil international obligations; it should not therefore have been made under s.1 of the United Nations Act 1946 (which does not require any Parliamentary scrutiny), but might be re-made under other powers allowing proper discussion in Parliament.

Where legislative power is delegated to bodies other than Ministers, the enabling Act usually makes Ministerial approval an essential part of the legislative process. This is the case with the powers given to local authorities under the Local Government Act 1972 and most of the other powers listed earlier on this page. The Minister in turn is answerable to Parliament for his decision to give or withhold approval.

Some limited control is imposed by the general requirement that statutory instruments (and most other forms of delegated legislation) be published, or at least brought to the attention of those affected by them.

Statutory Instruments Act 1946 s.3(2)

In any proceedings against any person for an offence consisting of a contravention of any … statutory instrument, it shall be a defence to prove that the instrument had not been issued by HMSO at the date of the alleged contravention unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or of the person charged.

On the other hand, there is no requirement for the general publication of bye-laws, and it can sometimes be difficult to discover their content. Local authorities and other organisations with the power to make bye-laws must generally allow members of the public to see them, but until a person knows that a particular bye-law has been made s/he does not know that there is anything to ask about! The development of the internet has helped a lot here: in 2000 none of the local authorities in the Avon area published a full list of their bye-laws, but by January 2008 both BANES and North Somerset had (more or less) complete lists of headings available on line, while Bristol and South Gloucestershire had more limited lists available.

Judicial Controls

Through the process of judicial review, the Divisional Court exercises its “inherent power” to scrutinise any kind of delegated legislation, and can declare it to be invalid in whole or in part if it is illegal, irrational or procedurally improper.

Legislation is invalid if it is ultra varies – that is, if it purports to go beyond the powers delegated by the enabling Act. The rules of statutory interpretation, for example, exclude (unless granted expressly and very clearly) the power to raise taxes, the power to exclude citizens’ access to the courts, and the power to legislate retrospectively.

R V Wood (1855) 119 ER 400, QB

The Public Health Act 1848 gave power to local health boards to make bye-laws requiring the removal of “dust, ashes, rubbish, dung and filth” from pavements. D was prosecuted for non-compliance with a Burslem bye-law that required the removal of snow, but the court said this was ultra vires. Freshly-fallen snow could be pure, so could not be regarded as “filth” as the board claimed.

Chester V Bateson [1920] 1 KB 829, DC

Regulations made under the Defence of the Realm Act 1914 made it an offence for any person to take proceedings to evict a tenant in a designated area without the consent of the Minister of Munitions. P sought to evict a tenant; the magistrates declined to hear his argument but stated a case for the High Court. Allowing P’s appeal and remitting the case for hearing on its merits,

Attorney-General V Wiltshire United Dairies (1922) 91 LJKB 897, HL

Wartime legislation allowed the Food Controller to regulate the supply of food in such manner as he thought fit. He made regulations restricting the transportation of milk to those holding a special licence, for which a fee of 2d per gallon was payable. The House of Lords declared this regulation ultra vires: it was equivalent to a tax, and no tax can be levied without the express consent of Parliament.

Delegated legislation may also be invalid if it has been made for improper reasons.

R V Somerset CC Ex P Fewings [1995] 3 All ER 20, CA

A local authority voted to ban stag hunting on land which it owned, and officers of the hunt sought judicial review of this decision. Laws J and the Court of Appeal said the majority of councillors in voting for the ban had been swayed by irrelevant factors (namely, their belief that hunting was immoral); they should have considered only whether the proposed measure would be for the benefit or improvement of the area. The decision should therefore be quashed.

Where the enabling Act set out a particular procedure for making the delegated legislation (for example by including a requirement to consult) the legislation may be invalid if the proper procedure was not followed.

Agricultural Training Board V Aylesbury Mushrooms [1972] 1 All ER 280, Donaldson J

Legislation required the Minister to consult relevant bodies before making Orders of a certain type, and through a clerical error there was no consultation with the Mushroom Growers’ Association (who were conceded to be a “relevant body” for this purpose). The court ruled that the consultation requirement was mandatory, and that its breach made the Order invalid as far as mushroom growers were concerned.

Delegated legislation may be invalid if it is excessively vague, or if it is so irrational that no reasonable person could have made it. This is not a decision to which the courts come very readily, but in extreme cases it may be appropriate.

Strickland V Hayes [1896] 1 QB 290, DC

Acting under the Local Government Act 1888, Worcestershire CC made it an offence to sing or recite any profane or obscene song, or to use any profane or obscene language “in any street or public place or on land adjacent thereto”. Quashing A’s conviction, the court said this went beyond the scope of the parent Act (which was concerned with the prevention of annoyance to others) and was consequently invalid, even though in the instant case A had been speaking on a public footpath surrounded by many other people.

Kruse V Johnson [1898] 2 QB 91, DC

Kent CC made a byelaw prohibiting any person from singing or playing music in a public place within fifty yards of a dwelling house, having been asked to stop. An evangelist A conducted an open-air service and sang hymns in the street, in spite of having been asked not to. The High Court affirmed his conviction: when the court is called on to consider the validity of bye-laws made by public representative bodies (as opposed to railway companies and the like), said Lord Russell CJ, they ought to be supported if possible. Obiter, a byelaw could be declared invalid if it was manifestly unjust or oppressive or disclosed bad faith on the part of its makers.

Nash V Finlay (1901) 20 Cox Cc 101, Dc

A woman A who used abusive language to another person was convicted by justices under a Stafford Borough byelaw providing that “no person shall wilfully annoy passengers in the streets”. The High Court allowed her appeal on the basis that the bye-law did not give an adequate indication of what conduct it was meant to prohibit. Lord Alverstone CJ said a bye-law must be at least certain in its scope and reasonable in its content.

Boddington V British Transport Police [1998] 2 All ER 203, HL

British Rail (shortly before privatisation) made a byelaw under s.67(c) of the Transport Act 1962 as amended, prohibiting smoking where “no smoking” notices were displayed; they subsequently introduced a total ban on some trains and displayed notices to this effect. A smoker A defied this prohibition; he was convicted and fined £10 by the stipendiary magistrate, and appealed on the grounds that the application of the byelaw was irrational and therefore ultra vires. Dismissing his appeal, Lord Irvine LC said A was entitled to challenge the validity of the bye-laws in criminal proceedings against him, but a ban on smoking in all railway carriages is a way of regulating the use of the railway, and British Rail had not exceeded their powers.

R (Bancoult) V Foreign Secretary [2006] EWHC Admin 1038

Several Chagossians formerly resident in the British Indian Ocean Territory (a group of about fifty low-lying islands containing important US defence installations) sought to challenge two Orders in Council (the Constitution Order and the Immigration Order) depriving them of any right of abode in the islands and making it an offence for anyone to be on the islands without a permit. Hooper LJ said that the exercise of the royal prerogative is in principle susceptible to judicial review, and that the Orders’ total disregard of the interests of the Chagossians (in favour of the defence interests of the United Kingdom and the United States of America) made them irrational and thus unlawful so far as BIOT was concerned. A declaration should be made accordingly.

Delegated legislation made under powers granted by one Act is normally invalid if it is inconsistent with the provisions of another Act, irrespective of which was made first. In particular, the Human Rights Act 1998 effectively makes unlawful and ineffective any delegated legislation that violates Convention rights, unless the enabling Act is so clear and so draconian as to make this violation not just permissible but unavoidable.

R V Secretary Of State For Social Security Ex P B [1996] 4 All ER 385, CA

An asylum-seeker B sought judicial review of Regulations withdrawing all social security benefits from those who sought asylum after having been admitted to the UK, rather than at the moment of entry. Reversing the High Court and granting a declaration that the Regulations in question were ultra vires, notwithstanding their approval by Parliament, Simon Brown and Waite LJJ said subordinate legislation must not only remain within the powers granted by the enabling Act, but must be consistent with any other primary legislation. The Asylum and Immigration Appeals Act 1993 expressly granted asylum seekers a right to seek asylum (and to appeal against a refusal); Regulations effectively depriving them of any means of support for months or years would make it impossible for them to exercise that right, and must consequently be invalid. [The policy contained in the invalid Regulations was subsequently enacted in statute.]

R (Bono) V Harlow DC [2002] 1 WLR 2475, Richards J

Applicants sought to challenge the decision of the district housing review board that they were not entitled to housing benefit, and argued that since the board consisted of councillors appointed by DD they had been denied the right to a hearing before an independent and impartial tribunal. The judge agreed, and said the relevant Regulations, although themselves authorised by statute, were incompatible with the Human Rights Act. Section 6(2) of the Human Rights Act 1998 applies only where the primary legislation requires such incompatibility, not where (as here) it merely permits it. It followed that the Regulations were invalid and the council’s compliance with them unlawful. [Note: The procedures had in fact been changed to provide an independent review, before this case came to court.]

The court will not strike out legislation simply because it thinks the policy behind it was wrong, or the detailed rules undesirable.

Nottinghamshire CC V Secretary Of State [1986] 1 All ER 199, HL

A local authority sought to overturn the government’s limit on their spending and cuts in the rate support grant. Refusing their claim, Lord Scarman said it would not be constitutionally appropriate, save in very exceptional circumstances (as for example where the Minister had misled the House, or both the Minister and the House had misconstrued the enabling statute), for the courts to intervene on the ground of unreasonableness to quash guidance framed by the Secretary of State and implicitly approved by the House of Commons. If the House of Commons was supervising the exercise of Ministerial powers, the courts should stand back.

R (Javed) V Home Secretary [2001] 3 WLR 323, CA

The Home Secretary (Michael Howard) made an Order under delegated powers, in which Pakistan was designated a “safe country” in which there was in general no serious risk of persecution, and to which rejected asylum-seekers might be returned after an accelerated appeal process. J and other applicants sought judicial review of that decision on the basis that it was factually wrong. The Court of Appeal said the provisions of Art.3 of the Convention, which guarantee freedom from torture and inhuman and degrading treatment, made it necessary for the court to depart from normal practice and examine the merits of the decision. The decision to include Pakistan could only have been based on an erroneous view of the facts or the law or both: the Home Secretary was plainly wrong, and a declaration would be granted to this effect.

Advantages And Disadvantages

It is now generally accepted that delegated legislation is not merely a necessary evil but that it has positive advantages.

It saves precious Parliamentary time. To take just one example, the Local Government Pension Scheme Regulations 1995 run to 185 very detailed but uncontroversial pages. There would be nothing to be gained from debating these in Parliament: the time taken for 650 MPs and 300 or so peers even to read the draft regulations would be better spent on other things.

It allows Parliament to concentrate on broad issues of policy rather than masses of detail. The Road Traffic Act 1972 (now replaced by the Road Traffic Act 1988) included a general requirement for motor-cyclists to wear protective helmets, but left the Secretary of State to draw up detailed regulations as to the type of helmet required. The Motor Cycles (Protective Helmets) Regulations 1980 contain further detail about the requirements.

It allows technical matters to be determined by those competent to do so, and can make use of expert knowledge not available within the Civil Service. The Air Navigation Order 1995 contains 140 pages of highly technical rules (including tables, maps and so on) governing the flying of civil aircraft around the United Kingdom: it is doubtful whether any Member of Parliament (including the Minister) had the technical expertise even to comment on these rules, let alone draft them.

It also allows local councils to make laws appropriate to their local areas: North Somerset needs bye-laws covering behaviour on the seashore, but bath &[; North-East Somerset does not. Street drinking is a problem in some city centres but not in all country villages. Local councils with local knowledge are in a much better position than MPs to decide where such laws are needed.

The enabling Act can impose a requirement of consultation with those most closely involved before Orders or Regulations are made. For example, s.2 of the School Teachers’ Pay and Conditions Act 1991 establishes a pay review body and requires the Secretary of State before making an Order implementing its recommendations to consult “such associations of local education authorities … bodies representing the interests of governors of voluntary schools … grant-maintained schools …bodies representing school teachers … as appear to him to be concerned”.

It offers flexibility: adaptation to meet changing circumstances or modification in the light of experience. The County Court Fees Order 1999 sets out the fees payable at various stages of civil proceedings, but the County Court Fees (Amendment) Order 2002 amends this Order to take account of changes in certain enforcement procedures. Similarly, the Civil Courts (Amendment) Order 1997 was made by the Lord Chancellor under s.2(1) of the County Courts Act 1984 to close the now-redundant County Court at Ammanford.

It allows rapid action to be taken in times of emergency. The Food Protection (Emergency Provisions) Order 1986 was made and laid before Parliament and came into effect less than two hours later, prohibiting the movement or slaughter for food of sheep in certain areas thought to have been affected by radioactive fallout from the incident at the Chernobyl power station.

It allows Acts to be implemented piece by piece, as circumstances make appropriate. Section 67 of the Family Law Act 1996 provided for most parts of the Act to be brought into force by statutory instruments issued by the Lord Chancellor. The Family Law Act 1996 (Commencement No.1) Order 1997 was the first such instrument, implementing some of the p