. 87
( 155 .)


in 1999“2000, First Report, HC 48, para 26.) The House of Lords responded
to these misgivings in setting up a committee “ now named the Delegated
Powers and Regulatory Reform Committee “ which has as part of its task the
examination of bills to determine whether their provisions ˜inappropriately
450 British Government and the Constitution

delegate legislative power™ and to report to the House before the bill has
reached the Committee stage of detailed consideration. The House of Lords
Committee does valuable work in checking excessive delegation in govern-
ment bills.
If the subject matter of delegation is of a constitutional character or is other-
wise of particular importance, the power to legislate may be conferred on the
Queen in Council. Orders in Council are drawn up in the department princi-
pally concerned and are formally rati¬ed by the Sovereign and a small group of
ministers meeting as the Privy Council. Among many enabling Acts which make
this kind of provision is the Civil Contingencies Act 2004, which invests the
government with a wide power to make emergency regulations by Order in
Council for dealing with emergencies threatening the United Kingdom. While
the Northern Ireland Assembly remains suspended (see chapter 4), Orders in
Council may be made under the Northern Ireland Act 2000 for any purpose
within the legislative competence of the Assembly (see also the Northern
Ireland Act 2006, section 3).
Orders in Council made under statutory authority are to be distinguished
from prerogative Orders in Council (see below) which are a type of primary, not
delegated, legislation.
Other statutes give powers to ministers of the Crown to legislate by means of
instruments variously named as regulations, directives, rules, orders, etc; we
may refer to them generally as regulations. Law-making powers are also dele-
gated to local authorities and to certain other public bodies (eg, the Financial
Services Authority, the General Dental Council and the Electoral Commission)
but our present concern is with powers conferred on ministers of the Crown.
These powers are the means to a comprehensive ministerial regulation (within
the statutory framework) of many public services and other activities, includ-
ing the National Health Service, social security, industrial training, town and
country planning, merchant shipping, health and safety at work, road tra¬c,
and so on.
An important innovation was the Deregulation and Contracting Out Act
1994 which conferred power on ministers to amend or repeal by ministerial
order primary legislation that was considered to impose unnecessary burdens
on business. Restrictions on the scope of the power were considered to limit its
e¬ectiveness, and strengthened provision was made by the Regulatory Reform
Act 2001, authorising ministers to make Regulatory Reform Orders to remove
or reduce burdens ˜a¬ecting persons in the carrying on of any activity™. Within
a few years the Government was persuaded that the powers in the 2001 Act were
˜too technical and limited™ and that ministers needed enlarged powers to enable
them to remove unnecessary bureaucratic restrictions and to bring about ˜swift
and e¬cient regulatory reform™, to the bene¬t of business and the public and
voluntary sectors. The Legislative and Regulatory Reform Bill that was intro-
duced to achieve these ends would have provided ministers with unprecedented
power, subject only to minimal restrictions, to repeal or amend any legislation
451 The powers of government

for any purpose. As we saw in chapter 2, the bill was widely condemned as
constitutionally outrageous and in response to well-mounted challenges from
within and outside Parliament the Government agreed to signi¬cant conces-
sions, introducing amendments to the Bill in the course of its passage so as to
limit its scope and introduce safeguards. In the result the Legislative and
Regulatory Reform Act 2006 provides ministers with wide, but no longer
untrammelled, powers to amend Acts of Parliament and secondary legislation
(see further below, pp 458“9).

(i) Statutory instruments
The legislative powers delegated to ministers or to the Queen in Council are exer-
cised, for the most part, in the form of statutory instruments, which are de¬ned
in the following terms by section 1 of the Statutory Instruments Act 1946:

1(1) Where by this Act or any Act passed after the commencement of this Act [on 1
January 1948] power to make, confirm or approve orders, rules, regulations or other subor-
dinate legislation is conferred on His Majesty in Council or on any Minister of the Crown then,
if the power is expressed “
(a) in the case of a power conferred on His Majesty, to be exercisable by Order in Council;
(b) in the case of a power conferred on a Minister of the Crown, to be exercisable by statutory
any document by which that power is exercised shall be known as a ˜statutory instrument™
and the provisions of this Act shall apply thereto accordingly.
(1A) The references in subsection (1) to a Minister of the Crown shall be construed as
including references to the National Assembly for Wales.
(2) Where by any Act passed before the commencement of this Act power to make
statutory rules within the meaning of the Rules Publication Act 1893 was conferred on any
rule-making authority within the meaning of that Act, any document by which that power
is exercised after the commencement of this Act shall, save as is otherwise provided by reg-
ulations made under this Act, be known as a ˜statutory instrument™ and the provisions of this
Act shall apply thereto accordingly.

The regulations referred to in section 1(2) are the Statutory Instruments
Regulations 1947, SI 1948/1, as amended.
In broad terms the e¬ect of the section is as follows. By section 1(1) an instru-
ment made under a post-1947 Act is a statutory instrument either if it is an
Order in Council or if it is made by a minister of the Crown and the empower-
ing Act expressly provides that the power is to be exercised by statutory instru-
ment. Section 1(2) deals with instruments made under pre-1948 Acts. All such
instruments made by ministers or by Her Majesty in Council are statutory
instruments unless excepted by the Statutory Instruments Regulations: instru-
ments so excepted are those having an executive and not a legislative character.
Statutory instruments are subject to the provisions of the Statutory Instruments
452 British Government and the Constitution

Act relating to publication and the procedure for laying before Parliament. (See
below.) The exercise by the government of powers of delegated legislation may
also be subject to conditions speci¬ed in the enabling Act.

Merits of Statutory Instruments Committee, Twenty-ninth Report,
HL 149-I of 2005“06, para 85
Proper consultation is a crucial part of the process of determining the most effective way of
achieving a policy objective and, where legislation is deemed to be necessary, of getting an
instrument right before it is laid. It should be remembered that the House cannot amend an
instrument: it can only accept or reject it. It is important therefore that, when an instrument
comes before Parliament, it should have been exposed to those who will be affected by its
provisions and its suitability reviewed in the light of their reactions.

Some enabling Acts oblige the minister concerned to consult organised inter-
ests or other bodies before making regulations. The particular organisations to
be consulted may be speci¬ed by the Act, or may be left to the judgement of the
minister in accordance with some general formula. A typical example of the
latter kind occurs in the Medicines Act 1968. The Act empowers the Health and
Agriculture Ministers to make regulations and orders for certain purposes, and
section 129(6) provides:

Before making any regulations under this Act and before making any order under this
Act . . . the Ministers proposing to make the regulations or order shall consult such organi-
sations as appear to them to be representative of interests likely to be substantially affected
by the regulations or order.

Does a provision of this kind give the minister an unfettered discretion as to the
organisations to be consulted? No: it is a matter for the minister™s judgement,
but ˜subject always to bona ¬des and reasonableness™: see Agricultural Training
Board v Aylesbury Mushrooms Ltd [1972] 1 WLR 190 (noted by Foulkes (1972)
35 MLR 647). Is there any limitation at all upon the discretion of a minister who
is empowered to make regulations after consultation with ˜any organisation
appearing to him to be appropriate™? The discretion is not absolute: the minis-
ter must fairly and reasonably consider which organisations are appropriate: cf
R v Post O¬ice, ex p Association of Scienti¬c, Technical and Managerial Sta¬s
[1981] 1 All ER 139, 141“2.
Some enabling Acts combine a general formula with a direction to consult
named organisations. Section 14(3) of the Building Act 1984 provides:

Before making any building regulations . . . the Secretary of State shall consult the Building
Regulations Advisory Committee and such other bodies as appear to him to be representa-
tive of the interests concerned.
453 The powers of government

In R v Secretary of State for Social Services, ex p Association of Metropolitan
Authorities [1986] 1 WLR 1, the court was concerned with the ˜kind or amount™
of consultation that would satisfy a statutory requirement to consult certain
organisations before making regulations. Webster J said:

[T]he essence of consultation is the communication of a genuine invitation to give advice
and a genuine receipt of that advice. In my view it must go without saying that to achieve
consultation sufficient information must be supplied by the consulting to the consulted party
to enable it to tender helpful advice. Sufficient time must be given by the consulting to the
consulted party to enable it to do that, and sufficient time must be available for such advice
to be considered by the consulting party. Sufficient, in that context, does not mean ample,
but at least enough to enable the relevant purpose to be fulfilled. By helpful advice, in this
context, I mean sufficiently informed and considered information or advice about aspects of
the form or substance of the proposals, or their implications for the consulted party, being
aspects material to the implementation of the proposal as to which the Secretary of State
might not be fully informed or advised and as to which the party consulted might have
relevant information or advice to offer.

In determining whether there has been proper consultation a court will have
regard, said Webster J, to the circumstances as they would have appeared to the
Secretary of State, acting in good faith at the relevant time. In this case the judge
held that the minister had not given su¬cient time to the applicant association
to respond adequately to his invitation to them to comment on the proposed reg-
ulations. He accordingly granted the association a declaration that the minister
had failed to comply with his statutory duty to consult them. The judge declined,
however, to strike down the regulations which, he said, had ˜become part of the
public law of the land™. (Is it questionable whether they had so become?) In decid-
ing to exercise his discretion in this way, Webster J noted that there had not been
a total failure of consultation; administrative inconvenience would be caused by
the revocation of the regulations; and they were in any event being replaced by
new, consolidating regulations. He expressed the view that ˜it is not necessarily to
be regarded as the normal practice, where delegated legislation is held to be ultra
vires, to revoke the instrument, but that the inclination would be the other way,
in the absence of special circumstances making it desirable to revoke that instru-
ment™. When such restraint is exercised, is the court simply administering ˜an
ine¬ective slap on the wrists™? (See Logie, ˜Promoting participation through the
courts: enforcing consultation procedure™ (1986) 136 NLJ 768.)
There was a di¬erent outcome in R v Secretary of State for Health, ex p United
States Tobacco International [1992] QB 353. In this case the company was the sole
UK manufacturer of oral snu¬. It had been encouraged by the Government to
manufacture and market its product and had received a government grant to help
it in setting up its UK operation. Some three years later the Secretary of State for
Health was advised by the Committee on Carcinogenicity (COC), an indepen-
dent body of scienti¬c experts, that oral snu¬ should be banned on health
454 British Government and the Constitution

grounds. The Secretary of State then announced that he proposed to make regu-
lations under section 10 of the Consumer Protection Act 1987 banning the
marketing of oral snu¬. By section 11(5) of the Act he was required, before
making the regulations, to consult organisations appearing to him to be repre-
sentative of interests that would be substantially a¬ected. The Secretary of State
invited the company to make representations to him, but then refused its request
to be shown the advice and reasons that had been submitted to him by the COC.
The company applied for judicial review of the decision to make the regulations,
on the ground inter alia that the Secretary of State had failed in his statutory duty
of consultation. The Divisional Court held that the Secretary of State had a duty,
in consulting, to be fair and to act in accordance with natural justice. What was
required to meet the standards of fairness and natural justice would depend on
the facts of the particular case, but in the present case, where the company had
been ˜encouraged to embark upon a substantial commercial operation™ in the
United Kingdom, where the regulations ˜impinged almost exclusively™ on the
company, and since ˜the e¬ect of the regulations was likely to be catastrophic™ to
the company™s UK business, a high degree of fairness and candour was required
to be shown by the Secretary of State. The court held that in refusing to disclose
the COC™s advice and reasons the Secretary of State had acted unfairly and unlaw-
fully, and it ordered that the regulations should be quashed.
How would it have bene¬ted the company to have been given particulars of
the COC™s advice? (See generally Jergesen, ˜The legal requirements of consulta-
tion™ [1978] PL 290.)
Although ministers are not under a legal duty to consult a¬ected persons or
organisations if the enabling Act imposes no such requirement (see Bates v Lord
Hailsham [1972] 1 WLR 1373) it is the regular practice of government depart-
ments to consult a¬ected interests before regulations are made. Consultation is
often essential if the regulations are to be properly tailored to the objectives
sought and if the support is to be won of interests whose cooperation is needed
for them to work e¬ectively. The Government™s Code of Practice on Consultation
(2004) is intended to provide ˜a clear framework of standards and advice™ for
departments in their consultation exercises, so as to further ˜responsive, open
administration™. The Code directs government departments and agencies to
consult widely throughout the process of developing policy and legislation (so
avoiding privileged access), sets a standard minimum period of twelve weeks for
responding in a written consultation exercise and encourages the giving of feed-
back, indicating what responses were received and how they in¬‚uenced the
policy. A Regulatory Impact Assessment, to be carried out if the proposed
legislation may a¬ect business, charities or the voluntary sector, must be
attached to consultation documents.

Consideration of specified matters
The enabling Act may direct the minister to ˜have regard to™ speci¬ed matters in
making regulations. For example, section 1(3) of the Industrial Development
455 The powers of government

Act 1982 provides that the Secretary of State, in exercising his powers to make
orders specifying areas of Britain as ˜development areas™ or ˜intermediate areas™:

shall have regard to all the circumstances actual and expected, including the state of employ-
ment and unemployment, population changes, migration and the objectives of regional

Even in the absence of an express requirement of this kind, there is an implied
obligation to have regard to relevant factors, to be gathered from the provisions
and objects of the Act, and to disregard irrelevant factors in exercising a statu-
tory power. Moreover the delegated power must be used for the purposes for
which it was conferred by the Act, and not for unauthorised purposes. (See
Attorney General for Canada v Hallet & Carey Ltd [1952] AC 427 and Customs
and Excise Comrs v Cure & Deeley Ltd [1962] 1 QB 340.) Failure to observe these
conditions may result in the invalidity of the regulations.

Section 2(1) of the Statutory Instruments Act 1946 provides for the publication
of statutory instruments:

Immediately after the making of any statutory instrument, it shall be sent to the King™s
printer of Acts of Parliament and numbered in accordance with regulations made under this
Act, and except in such cases as may be provided by any Act passed after the commence-
ment of this Act or prescribed by regulations made under this Act, copies thereof shall as
soon as possible be printed and sold by or under the authority of the King™s printer of Acts
of Parliament.


. 87
( 155 .)