The relationship between delegated legislation and the Human Rights Act 1998 (HRA) is seemingly becoming a more contentious constitutional issue. Professor Richard Ekins published, as part of the Policy Exchange’s Judicial Power Project, an agenda for constitutional reform under the title of Protecting the Constitution. Amongst an extensive set of reform suggestions, Ekins proposes that the relationship between human rights, the courts, and delegated legislation ought to be recast:
The HRA should be amended to protect subordinate legislation, as well as primary legislation, from invalidation on the grounds of incompatibility with convention rights. This would discourage political litigation retrospectively to impugn the lawmaking choices of responsible authorities, helping uphold settled law and protecting the rule of law.
The analysis provided in support of this proposal is, for the sake of giving fair voice to it here, worth replicating in detail:
Human rights litigation can result in the misinterpretation of primary legislation or in its denunciation on political grounds. In other cases, courts simply quash secondary legislation, such as statutory instruments. The risk that secondary legislation will be quashed, because a court concludes it is unjustified, undermines legal certainty. In R (Tigere) v Secretary of State for Business, Innovation and Skills  UKSC 57 a majority of the Supreme Court simply quashed rules linking entitlements to student loans to lawful residence in the United Kingdom. In this ruling the Supreme Court went beyond what the ECtHR would itself have required, with the majority misusing the HRA to force the government to adopt a more generous policy of student loan entitlement for non-citizens.
Similarly hostile sentiments about HRA review of delegated legislation are also now appearing in policy. While the Internal Market Bill (now the Internal Market Act 2020) was passing through Parliament, the Bill as introduced in the House of Lords included provisions that sought to modify the operation of the Human Rights Act vis-à-vis delegated legislation in two ways. First, clause 47(2)(a) provided that, in making regulations under clauses 44 or 45 of the Bill, ministers will be exempt from their usual duty under section 6(1) of the HRA to act in accordance with Convention rights. Second, clause 47(3) provided that regulations made under clauses 44 or 45 must be treated as if they were primary legislation under the HRA—thus changing the powers of review open to the courts. While these provisions were ultimately removed, it would not be difficult to get the impression from developments such as these that the executive’s ability to make delegated legislation is heavily constrained by how the courts are applying the HRA. The question must therefore be confronted squarely: does judicial review of delegated legislation under the HRA unduly interfere with executive law-making?
To study this issue, we compiled a dataset of cases where delegated legislation has been successfully reviewed under the HRA. The purpose of this approach was to adopt the most extensive form of the charity principle by focusing exclusively on the cases that would be most likely to produce evidence of judicial overreach (for a previous example of this method, see here). Put simply, we combed legal databases for all final decisions handed down by the High Court and Court of Appeal of England and Wales, as well as the UK Supreme Court, between 2014 and 2020 in which the lawfulness of delegated legislation was challenged (where cases involved appeals, we included the final judgment). We were only concerned with challenges to orders and regulations, rather than for example, to policy guidance or working practices, and only identified those cases where the delegated legislation itself was the subject of legal challenge, rather than the exercise of discretion or power granted in an instrument. On the basis of this database, we offer four principal observations.
First, there are not many successful challenges to delegated legislation based on the HRA. In our sample, there were just 14 cases identified in the last seven years. This figure not only represents a small number of cases by itself, but it must also be put in the context of the volume of delegated legislation that is made. The number of UK statutory instruments made each year has increased significantly in recent decades–consistently running into the thousands and peaking at 4,150 in 2001 (see Figure 1). In this context, the role of the courts in ruling delegated legislation unlawful under the HRA is marginal.
Figure 1: Volume of statutory instruments and Acts of Parliament by individual pieces of legislation
Second, the scrutiny a piece of delegated legislation receives when it is judicially reviewed is not infrequently the first substantial scrutiny it has ever received, and almost always the most rigorous scrutiny. When it is being made, delegated legislation is subjected to weak scrutiny processes. For example, the government of the day has control over whether debates on negative procedure statutory instruments occur and it also has control over the membership of Delegated Legislation Committees for affirmative procedure debates. There is regularly insufficient time to debate the instruments to afford them proper scrutiny (by way of example, the Product Safety and Metrology etc. (Amendment etc.) (EU Exit) Regulations 2019 are 619 pages long and were debated in the Commons for 52 minutes and the Lords for 51 minutes). Generally, statutory instruments also face no realistic prospect of defeat within Parliament—only 17 have been rejected in the last sixty-five years, and none in the Commons since 1979. For this reason, whilst courts do recognise that delegated legislation has the technical approval of Parliament, meaning that “caution” should be shown when reviewing it (Hurley v Secretary of State for Work and Pensions  EWHC 3382 (Admin) , per Collins J), they have also recognised that the level of parliamentary involvement is often only very slight, weakening the case for judicial deference. This is particularly true in relation to legislation passed under the negative resolution procedure, as Lady Hale recognised in Tigere. Six out of the 14 cases in our dataset concerned challenges to SIs that were made via the negative resolution procedure.
Third, there is scant evidence of judicial overreach. Decision-making in this context is characterised more by judicial deference. Not only are there many more unsuccessful challenges to delegated legislation than there are successful ones, but courts often grant the executive significant leeway when considering economic and social welfare policy—frequent subjects of delegated legislation. In cases such as R (Carmichael & Others) v SSWP  UKSC 58, the courts are careful to restrict the scope of their ruling to the specific aspects of the scheme which failed to pass scrutiny. Some types of claim are more common in HRA review of delegated legislation. Ten of the 14 successful challenges relied on Article 14 (freedom from discrimination), most often with respect to Article 8 (right to private life) or Article 1 of the First Protocol (right to property).This pattern suggests that courts are not attacking delegated legislation from all angles but are being confronted with provisions which breach the Convention in broadly similar ways. This is further supported by the fact that the impugned statutory instruments across the 14 cases were passed under just eight different parent acts (e.g. four cases involved challenges to different regulations made under the Welfare Reform Act 2012). Ultimately, this can be taken to suggest that the problem may lie with the human rights dimensions of certain types of legislative schemes rather than an over-zealous judiciary.
Finally, even when the courts do find delegated legislation incompatible with HRA, it does not necessarily mean that it is inevitably “struck down.” Instead, there is a nuanced “endgame” after the judgment, which often gives the government space to implement the decision. The quashing of statutory instruments is an important power but it is a discretionary power that is rarely used. Of the 14 cases in which human rights challenges to delegated legislation succeeded, the court quashed or otherwise disapplied the offending provisions in just four of them. Usually, the court simply declares that the offending legislation violates human rights, either in abstract or with respect to the specific claimant in the case. Such a declaration does not affect its continuing validity. Judges are evidently aware that a quashing order can have significant and disruptive effects, and that it is often desirable for government to have space to respond to an adverse decision. This was demonstrated in R (TD) v Secretary of State for Work and Pensions  EWCA Civ 618, where after declaring that certain regulations gave rise to a breach of the claimant’s rights, Singh LJ said the following:
It will be a matter for the Secretary of State to decide how to respond to a declaration by this Court that there has been a violation of these Appellants’ rights… that may or may not lead to a scheme being designed which benefits other people, who are not before this Court, but the design of any such scheme will in the first instance be for the Secretary of State.
Indeed, the case of Tigere is a prime example of this approach. Although Ekins claims that the Supreme Court “simply quashed” the rules relating to student loans, this was not the case; Lady Hale, for the majority, ruled that the claimant in the case was “clearly entitled to a declaration that the application of the settlement criterion to her is a breach of her rights” but declined to quash it, which “[left] it open to the Secretary of State to devise a more carefully tailored criterion which will avoid breaching the Convention rights of other applicants, now and in the future.” This is not to say that declarations have no impact on government but it is clear the courts are not taking a sledgehammer to regulations incompatible with the HRA. They are, instead, using their remedial discretion to sensitively enforce human rights protected through legislation.
The HRA is currently the subject of an extensive review by the government and it is likely that judicial review of delegated legislation under the HRA will be a part of the conversation. Overall, if one actually looks at the cases most likely to vindicate any claim that judicial review of delegated legislation under the HRA unduly interferes with the business of the executive, there is very little cause for concern. At the same time, there are a range of compelling reasons why the present approach ought to be retained. Perhaps the central problem with any change is that the removal of the power of the courts to strike down delegated legislation under the HRA would result in human rights laws being given a lower level of protection in this context. It is well established as a general common law principle that an ultra vires piece of secondary legislation can be quashed, or the offending parts blue pencilled, or disapplied by lower courts and tribunals where this can be achieved without cutting across the essential purpose and effect of the legislation. To weaken the reviewing powers of the courts in relation to delegated legislation in only HRA cases would create a constitutional oddity. We have seen no clear justification for such an exception in the case of the HRA and it would run against the general recognition in the common law that, if anything, fundamental rights issues ought to attract enhanced judicial scrutiny (see e.g. R v Ministry of Defence ex parte Smith  QB 517). In our view, the panel considering reform should—without clearer evidence and justification—be extremely wary of any claim that the HRA is a hinderance to delegated law-making. There are serious, well-documented problems with our system of delegated legislation that warrant reformist attention—the role of the courts under the HRA is not one of them.
We are grateful to Hettie Catley and James Webb for research assistance on the database and to Alison Pickup for comments on a draft version of this post.
Dr Joe Tomlinson is Senior Lecturer in Public Law at the University of York and Research Director of the Public Law Project
Lewis Graham is a PhD Candidate at the University of Cambridge and Research Fellow in Constitutional Reform at the Public Law project
Alexandra Sinclair is a PhD Candidate at the London School of Economic and a Research Fellow at the Public Law project.
(Suggested citation: J. Tomlinson, L. Graham and A. Sinclair, ‘Does judicial review of delegated legislation under the Human Rights Act 1998 unduly interfere with executive law-making?’, U.K. Const. L. Blog (22nd Feb. 2021) (available at https://ukconstitutionallaw.org/))