The Court Controls on Delegated Legislation
- teachlawhub
- Mar 13
- 5 min read
Updated: 7 days ago
Delegated legislation plays a very important role in the UK legal system. It allows individuals or bodies other than Parliament to make law using powers granted to them in an Enabling Act (also known as a Parent Act). Whilst this system allows laws to be made quickly and by people with specialist knowledge, it also raises an important constitutional issue in the fact that delegated legislation is created by unelected individuals.
Due to this, delegated legislation can be seen as and criticised as undemocratic. Parliament is elected by the public, but the ministers, government departments and the local authorities who create delegated legislation are not directly elected to make laws in the same way that Parliament is. As a result, there must be controls in place to ensure that these powers are used fairly and properly and these bodies do not overstep their delegated law making powers.
There are two main ways that delegated legislation can be controlled:
Control by Parliament
Control by the Courts
This blog focuses on how the courts control delegated legislation, ensuring that those who create it do not abuse the powers granted to them in the Enabling Act.
Challenging Delegated Legislation in the Courts
The courts control delegated legislation mainly through the principle of ultra vires.
Ultra vires is a Latin term that means beyond their power. When a piece of delegated legislation is challenged on this ground, the courts are essentially deciding whether the person or body who created the law acted outside the powers given to them by Parliament.
If the court finds that delegated legislation is ultra vires, the law is considered void. This means it cannot be enforced and has no legal effect.
Delegated legislation can be challenged in court through several legal routes, including:
Judicial Review
A civil claim between two parties
A case stated appeal
However, the most common and significant method is Judicial Review.
Judicial Review
To challenge a piece of delegated legislation through the courts, the process normally begins with Judicial Review.
Judicial Review is a legal procedure where a person asks the court to examine whether a public body has acted lawfully when exercising its powers. In the context of delegated legislation, the claimant argues that the legislation was either:
Made unlawfully, or
Created using the wrong procedure.
During Judicial Review, judges do not decide whether the law is a good idea. Instead, they focus on whether the law was made within the legal powers granted by Parliament and the Enabling Act.
If the court decides that the delegated legislation is ultra vires, the legislation becomes invalid and unenforceable.
There are two main types of ultra vires used by the courts when reviewing delegated legislation.
Substantive Ultra Vires
Procedural Ultra Vires
Substantive Ultra Vires
Substantive ultra vires occurs when the body making delegated legislation exceeds the powers given to them in the Enabling Act. In other words, the body making the delegated legislation has exceeded their powers when making the piece of delegated legislation. e.g. by making laws in areas that they were not allowed to do.
When courts examine delegated legislation, they assume that certain powers do not exist unless they are clearly granted in the Enabling Act. For example, delegated legislation normally cannot:
Create unreasonable regulations
Levy taxes
Allow sub delegation (passing the law making power to someone else)
If a public body attempts to do any of these things without express permission from Parliament, the delegated legislation will be considered substantive ultra vires.
A good example of substantive ultra vires can be seen in R v Home Secretary, ex parte Fire Brigades Union (1995). In this case, the Home Secretary attempted to introduce a new system for assessing compensation for victims of crime. However, this system was different from the one set out in the Criminal Justice Act 1988, which had been passed by Parliament. The House of Lords held that the Home Secretary had acted unlawfully. By introducing a new compensation scheme that differed from what Parliament had authorised, he had exceeded the powers granted to him by the Act. As a result, his actions were considered ultra vires. This case demonstrates how the courts ensure that ministers do not go beyond the authority given to them by Parliament.
Substantive Ultra Vires for Unreasonableness
Another way delegated legislation can be challenged is on the basis that it is unreasonable. This means that the body making the delegated legislation has gone beyond the powers given to them in the Enabling Act by making an unfair or unreasonable law.
This principle developed from the famous case of Associated Picture Houses v Wednesbury Corporation (1948), often referred to as the Wednesbury principle. In this case, a local council granted a cinema permission to open on Sundays but imposed a condition that children under the age of 15 were not allowed to attend Sunday screenings. The cinema company argued that this condition was unreasonable and that the council had no authority to impose it. However, the Court of Appeal disagreed and held that the condition was not unreasonable. The court explained that a decision will only be considered unreasonable if it is so irrational that no reasonable authority would ever have made it.
This principle established that delegated legislation will be considered as unreasonable, when decisions made by public bodies are so unreasonable or irrational that no reasonable authority would ever have made it.
Another case demonstrating unreasonable delegated legislation is Strickland v Hayes Borough Council (1896). In this case, a local authority introduced a bylaw banning the singing or reciting of obscene songs or the use of obscene language. The problem was that the bylaw applied both in public places and on private property. The court held that this bylaw was unreasonable and therefore ultra vires because it was too widely drafted. Local authorities should not regulate behaviour that occurs on private property, and therefore the council had exceeded its powers.
Procedural Ultra Vires
The second major category is procedural ultra vires.
This occurs when the body making delegated legislation fails to follow the correct procedure set out in the Enabling Act. Parliament often requires specific steps to be followed before delegated legislation can be created, such as:
Consulting certain organisations
Carrying out investigations
Publishing proposals
If these procedures are not followed, the resulting delegated legislation can be declared void.
An important example of procedural ultra vires is Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd (1972). The Enabling Act required the Minister of Labour to consult any organisation that appeared to represent a substantial number of employers in the industry before introducing the relevant order. However, the Minister failed to consult the Mushroom Growers Association, which represented around 85% of mushroom growers. The court held that the minister had failed to follow the procedure required by the Act, meaning the order was procedurally ultra vires. As a result, the order did not apply to members of the Mushroom Growers Association, although it remained valid for organisations that had been consulted. This case highlights the importance of following the procedures set out by Parliament when creating delegated legislation.
Why Court Controls on Delegated Legislation Matters
Judicial control upon delegated legislation is an essential safeguard within the UK constitution. Delegated legislation allows laws to be created efficiently, but without proper oversight it could lead to abuse of power by government ministers or public bodies.
Through Judicial Review and the doctrine of ultra vires, the courts ensure that:
Public bodies act within the powers given by Parliament
Proper procedures are followed
Laws are not unreasonable or irrational
By performing this role, the courts help maintain the balance between efficiency and democratic accountability within the law making process.
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