6.8 Note: Delegated Legislation

The doctrine of parliamentary supremacy concerns Acts of Parlia-

ment. In practice, however, most of English law consists of delegated

or subordinate legislation. Delegated legislation comprises laws made

outside Parliament, usually by ministers but also by the Privy Council,

and by statutory bodies such as local authorities. Such lawmaking is

possible only under powers which are conferred by an Act of Parlia-

ment (the ‘parent’ Act). It is commonplace for a statute to lay down a

general principle and then to confer power upon a minister to make

detailed rules fleshing out the principle. Delegated lawmaking powers

are sometimes very wide, and often permit the minister to implement

or alter other Acts of Parliament (the so-called ‘Henry VIII’ clause,

e.g. Deregulation Act 1994, Local Government Act 2000 s. 5, Pollution

Prevention and Control Act 1999).

Delegated legislation has often been criticised on constitutional

grounds, and is, of course, an infringement of the strict theory of the

separation of powers. Delegated legislation can be made without the

public and democratic processes represented, albeit imperfectly, by

Parliament. However, it is difficult to imagine a complex and highly

regulated society such as our own that could function effectively if all

laws had to be made by Parliament itself (see Committee on Ministers

Powers (1932), Cmd. 4060). Most delegated legislation is subject to

safeguards in the form of a limited amount of parliamentary scrutiny

(see Chapter 11). Unlike a statute, delegated legislation can be set aside

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by the courts if it is outside the powers conferred by Parliament and

also if it violates the Human Rights Act 1998.

Delegated legislation comes under many names, including, for

example, regulations, orders, directions, rules, bylaws. Little hinges on

the precise terminology used. However, a compendium term, ‘statutory

instrument’, applies to most delegated legislation made by ministers

and to Statutory Orders in Council (Statutory Instruments Act 1946).

Statutory instruments must be formally published, and, in accordance

with the rule of law it is a defence in criminal proceedings to show that

an instrument has not been published and that it is not reasonable to

expect the accused to be aware of it (ibid. s. 4). However, it seems

hat failure to publish does not affect validity for other purposes (see

R. v. Sheer Metalcraft (1954)).

Summary

6.1 The doctrine of parliamentary supremacy provides the fundamental legal

premise of the UK constitution. It rests only upon general acceptance by the

courts. The doctrine means that an Act of Parliament must be obeyed by

the courts, that later Acts prevail over earlier ones, and that rules made

by external bodies, for example under international law, cannot override Acts

of Parliament. It does not follow that Parliament is supreme politically

although the line between legal and political supremacy is blurred.

6.2 Parliamentary supremacy rests on frail foundations. Without a written

constitution it is impossible to be sure as to its legal basis other than as an

evolving practice which is usually said to depend on the 1688 revolution. It is

possible to maintain that the common law is really supreme.

6.3 Parliament is itself a creature of the law. The customary and statutory rules

which have evolved since medieval times determine that, except in special

cases, Parliament for this purpose means the Queen with the assent of the

House of Lords and House of Commons. The courts can determine whether

any document is an Act of Parliament in this sense, but cannot enquire into

whether the correct procedure within each House has been followed.

6.4 The doctrine has two separate aspects: first, that the courts must obey Acts of

Parliament in preference to any other kind of legal authority, and second, that

no body, including Parliament itself, can place legal limits upon the freedom

of action of a future Parliament. The first of these principles is generally

accepted, but the second is open to dispute.

6.5 The doctrine is subject to considerable attack.

(i) the ‘redefinition’ argument proposes that by altering the basic require-

ments for lawmaking Parliament can effectively limit itself, just as it could

if it abolished itself in favour of a more limited body;

(ii) grants of independence to dependent territories; these can probably be

revoked lawfully in the eyes of UK courts;

(iii) the possibility that parts of the Acts of Union with Scotland and Ireland

are unchangeable: this is probably outside the courts’ jurisdiction;

142 General Principles of Constitutional and Administrative Law

(iv) the idea that Parliament limited the freedom of future Parliaments in

relation to certain laws made by the European Communities. The implied

repeal principle has been modified but Parliament probably retains the

ultimate power to override an EC rule.

6.6 It is difficult to reconcile parliamentary supremacy with the extended version

of the rule of law which was discussed in Chapter 5. There is a separation of

powers between Parliament and the courts. The courts interpret statutes and

can do so according to their own views of what the statute means. These are

not necessarily the same as Parliament’s views. There is a thin line between

interpretation and disobedience which sometimes creates tension between

Parliament and judges. More fundamentally it can be argued that parliamen-

tary supremacy was created by the courts who can therefore withdraw it.

6.7 Acts of Parliament must be distinguished from delegated legislation. The latter

can be set aside by the courts on the ordinary grounds of judicial review.

Further Reading

Allan, Constitutional Justice, Chapter 7.

Allan ‘Parliamentary sovereignty: law, politics and revolution’, 113 Law Quarterly

Review 443.

Craig, Public Law and Democracy, chapter 2.

Bradley in Jowell and Oliver (eds) The Changing Constitution.

Griffith (2001) ‘The common law and the political constitution’ 117 Law Quarterly

Review 42.

Munro, Studies in Constitutional Law, chapters 5, 6.

Marshall, Constitutional Theory, chapter 3.

MacCormick, N. (1978) ‘Does the United Kingdom have a constitution? Reflections on

MacCormack v. Lord Advocate’, 29 NILQ 1.

MacCormick, (1993) ‘Beyond the sovereign state’ Modern Law Review 1.

Mullender, (1998) ‘Parliamentary supremacy, the constitution and the judiciary’ 45

NILQ, 138.

Wade, (1955) ‘The basis of legal sovereignty’, Cambridge Law Journal 172.

Laws Sir J. (1993) ‘Is the High Court the guardian of fundamental constitutional

rights?’, Public Law 59.

Exercises

6.1 Trace the development of the doctrine of parliamentary supremacy. Has it a

secure legal basis?

6.2 To what extent, if at all, has the doctrine of parliamentary supremacy been

affected by the ‘redefinition theory’?

6.3 ‘Every age and generation must be as free to act for itself, in all cases as the

ages and generations which preceded it. The vanity and presumption of

governing beyond the grave is the most ridiculous and insolent of all

tyrannies’ (Thomas Paine). Discuss.

6.4 Marshal the arguments for and against the proposition that the UK Parliament

cannot repeal the Act of Union with Scotland.

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Parliamentary Supremacy

6.5 To what extent is it useful to distinguish between legal and political

sovereignty? Do you agree with Dicey’s attempt to do so?

6.6 Consider the validity and effect of the following provisions contained in

(fictitious) Acts of Parliament:

(i) Decisions made under this Act shall not be questioned in any court on

any ground whatsoever including jurisdictional grounds.

(ii) ‘There shall be a bill of rights in the UK and no Act to be enacted at any

time in the future shall have effect, in as far as it is inconsistent with the

bill of rights, unless it has been assented to by a two-thirds majority of

both Houses of Parliament and no Act shall repeal this Act unless it has

the same two-thirds majority.’

(iii) ‘No Bill shall be introduced into either House of Parliament which

purports to affect the established Church of England unless it recites on

its face that it has the prior approval of the Synod of the Church of

England.’

(iv) ‘There shall be no Parliamentary elections for 50 years.’

(v) ‘This Act shall apply notwithstanding any contrary rule of European

Community law’ (see Chapter 7).

6.7 ‘The sovereignty of Parliament and the supremacy of the law of the land – the

two principles which pervade the whole of the English constitution may

appear to stand in opposition to each other, or to be at best countervailing

forces. But this appearance is delusive . . .’ (Dicey). Discuss.

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Part II

The Geographical Division of Powers

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7 Federalism and Devolution

7.1 Introduction: Federal and Devolved Government

In a federal state such as the USA, the constitution divides power

between a central federal government and separate state units in such a

way that each is independent within its own sphere and neither can

override the other. Federalism is therefore a way of giving effect to

republican values as a form of separation of powers. Federalism allows

diverse units to retain their distinctive identity while at the same time

encouraging unity where there is a common interest. Federalism is

practicable where the component units have sufficient in common

economically and culturally, for example a shared history or language

to enable them to co-operate, while at the same time each unit is suffi-

ciently distinctive to constitute a community in its own right. Thus a

delicate balance must be struck. The USA and Australia are relatively

successful federations whereas Canada, with its split between English-

speaking and French-speaking regions, is less stable. Yugoslavia, with

its many ethnic tensions, has been tragically unsuccessful. The relation-

ship between a federal government and the governments within it, is

not, therefore in law, one of superior and inferior, but of partnership.

Each has its own sphere of activity and its own constitution and courts

and it may be unlawful for one to trespass upon the other. This is why

the debate about whether the European Union is a federal structure

is sometimes confused by those who regard federalism as a kind of

overriding government.

Federalism involves certain basic ingredients. There is a single fed-

eral citizenship and free movement within the federation. The central

government usually represents the country on the international level

and exercises defined functions – typically, defence and foreign affairs,

currency, postal services and important commercial activities – while

leaving residual power sometimes including the basic civil and criminal

law with the states. Some versions allocate particular matters to the

states with the federal level as the residuary power. Where respon-

sibilities overlap, doctrines such as ‘pre-emption’ which allows a gov-

ernmental entity to stake a claim over a particular area of activity, or

the ‘supremacy’ clause of the US constitution provide resolving mech-

anisms. Representatives of the states may sit in the federal legislature.

In the USA for example the lower house (House of Representatives) is

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148 General Principles of Constitutional and Administrative Law

elected according to the population of the states, while in the upper

house (the Senate) each state has equal representation.

As with any constitution, the actual disposition of power in a

federation depends on political and economic reality so that the real

balance between centre and state may not be apparent from reading

the constitution. It is probably best to regard terms such as ‘federal’ or

‘unitary’ not as precise definitions, but as convenient points upon a

political spectrum ranging from loose associations of countries for

particular purposes to simple one-government states.

On this spectrum the UK’s constitution is closer to the latter

extreme and is therefore called a ‘unitary’ constitution. A unitary state

has an overriding supreme lawmaker which can devolve power to

subordinate units but is free to take the power back. However the

UK is not an extreme example of a unitary constitution being a union

of what were the separate units of England, parts of Ireland and

Scotland. Wales is also part of the UK but has never been a separate

political unit in its own right. Moreover certain powers have recently

been devolved to elected assemblies in Scotland, Northern Ireland and

Wales but without limiting the powers of Parliament.

Dicey strongly opposed federalism in the UK, a factor which influ-

enced his attitude to parliamentary supremacy. He thought that federal-

ism tends to conservatism, creates divided loyalties and that it elevates

legalism to a primary value, making the courts the pivot on which the

constitution turns and perhaps threatening their independence (Dicey,

1915, p. 171). However, Dicey recognised that federalism might make

it possible to unite communities that otherwise would quarrel.

During the late nineteenth century there were some advocates of a

federal UK as a way of avoiding home rule for Ireland and also

proposals for a federation of the UK and some of its overseas ter-

ritories. However, on the whole, federalism has not been a serious

element of UK politics. The Kilbrandon Report (1973) argued against

a federal constitution for the UK on the following grounds. First the

units are widely different in economic terms, with England being the

dominant member. Any federation is therefore likely to be unbalanced.

Secondly a federal regime would be contrary to our constitutional

traditions in that it would elevate the courts over political machinery.

Thirdly the UK was thought to require central and flexible economic

management since its resources are unevenly distributed geographically

much of its land area being thinly populated hills. Fourthly, apart

from Northern Ireland, regional issues were not high on the agenda of

the main parties, which suggested that there was little public desire

for federalism.

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Federalism and Devolution

Before devolution, the internal affairs of Scotland and Wales were

governed by the UK central executive with what has been described as

overtones of colonialism an echo of which survives in the present devo-

lution arrangements (Rawlings, 1998). This took the form of ‘admini-

strative devolution’ to ministers for Scotland, Wales and Northern

Ireland. There was therefore no specific democratic power base or

accountability mechanism linking the ministers to their regions (see

Munro, 1999, p. 37 et seq.). Indeed the relevant minister might have an

English constituency. Scotland and Northern Ireland have separate

legal systems but the House of Lords and the Privy Council are final

courts of appeal for all the UK jurisdictions.

Nevertheless the Kilbrandon Report asserted that government in

the UK was over-centralised and recommended devolved government.

In a closely integrated and mobile economy such as that of the UK this

can probably not be justified on the basis of more efficient or less

corrupt government but rests upon the more intangible claims of local

democracy (see Chapter 8). Referendums were subsequently held in

Scotland and Wales which foundered because they failed to obtain the

required two-thirds majorities in favour of change. Nothing further

was done until the Labour government took office in 1997. Following

referendums which produced considerable public support for devolu-

tion in Scotland and significant but less support for devolution in

Wales, legislation was introduced to give both legislative and executive

power to a Scottish Parliament and executive and subordinate legis-

lative power to a Welsh Assembly. At the same time the peace pro-

cess in Northern Ireland included proposals to restore legislative and

executive power to the province which had been directly governed by

the UK government since 1972. These proposals were also approved

by a referendum and the devolved arrangements were put in place

subject to the completion of the peace process between the various

parties representing Catholic and Protestant communities. The devolu-

tion arrangements also include arrangements for ‘concordats’ between

the UK government and the devolved administrations. These put in

place conventions for co-ordinating the activities of the governments,

for example through a joint ministerial committee and may buttress of

the kind of secretive informality that has long bedevilled UK govern-

ment (see Memorandum of Understanding and Supplementary

Agreements (2001) Cm. 4806; Rawlings, 2000).

The devolution arrangements are asymmetrical in the sense that they

are different in each region. First, the powers of the three devolved

bodies and their relationship with the UK government are different.

Secondly, England, comprising 85% of the population of the UK, has

150 General Principles of Constitutional and Administrative Law

no democratic devolved institutions of its own nor indeed a legal

identity. Thus Scottish, Welsh and Northern Ireland members of the

UK Parliament are entitled to vote in debates affecting exclusively

English matters (the ‘West Lothian’ question, so-called after the con-

stituency of Tam Dalziel, a relentless pursuer of the matter). Thirdly

Scottish, Welsh and Northern Ireland voters are represented in the

UK Parliament roughly in proportion to their population. This means

that the UK Parliament, which retains unlimited power to legislate

in relation to Scotland, Wales and Northern Ireland and provides

most of the funding for the regional governments, is dominated by

English MPs.

There seems to be little public support for devolution within England

and the Kilbrandon Report was divided on the matter. Constitutional

issues relating to the English regions are divided between the Depart-

ments of Transport, Local Government and the Regions (DTLR),

the Department of Trade and Industry and the Cabinet Office. There

are nine regional offices of central government charged with a co-

ordinating role. There are also eight Regional Development Agencies

(RDAs) wholly appointed by the Secretary of State and charged only

with one group of purposes, that of advancing economic development

including related matters of education and training (Regional

Development Agencies Act 1998). RDAs are funded by the DTLR

but accountable to the Secretary of State for Trade and Industry.

However, the government proposes to issue a White Paper in 2002 on

devolution in England.

7.2 Scotland

Scotland was a separate nation state from 1010 until 1706. It has a

separate legal system which has stronger links with civil law systems

than is the case with England. In 1603, as a result of inheritance, the

Crowns of England and Scotland were united in James I (England)/

James VI (Scotland). This led to economic and social integration

including free trade and common citizenship. In 1689 Scotland offered

its Crown to William and Mary on the same terms, the supremacy of

Parliament, as in England.

After quarrels between the two Parliaments the Treaty of Union

1706 abolished the separate Scottish and English Parliaments and

created a Parliament of Great Britain. The treaty was confirmed by

separate Acts of each Parliament (Act of Union with England 1706;

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Act of Union with Scotland 1707). The Acts of Union are still in force.

They preserve the separate Scottish legal system and church and

safeguard the private rights of Scottish subjects (above, p. 130). The

Union was unpopular but was brought about by economic interest on

the part of Scotland and fear of invasion on the part of England.

Since the sixteenth-century Reformation there had been cultural

assimilation between the two countries, but also religious warfare

between Catholics and Protestants. There were violent uprisings and

government oppression throughout the eighteenth century followed

by governmental attempts to instil a distinctive Scottish culture dur-