Delegated Legislation in UK Law

Ultimately, it is for the court to decide whether or not the Convention rights have been breached: R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100; Belfast City Council v Miss Behavin' Ltd [2007] UKHL 19, [2007] 1 WLR 1420.

The real obstacle which I think stands in the appellants' way is the difficulty of propounding a principle which reconciles fairness to an adversely affected class with the principles of public administration that are also part of the common law. These are not based on administrative convenience or potential embarrassment.

Since O'Reilly v. Mackman decisions of the House of Lords have made clear that the primary focus of the rule of procedural exclusivity is situations in which an individual's sole aim was to challenge a public law act or decision. It does not apply in a civil case when an individual seeks to establish private law rights which cannot be determined without an examination of the validity of a public law decision.

The rules do not purport to enact a precise code having statutory force. They are discursive in style, in part merely explanatory and, on their face, frequently offer no more than broad guidance as to how discretion is to be exercised in different typical situations. In so far as they lay down principles to be applied, they generally do so in loose and imprecise terms as, for example, in the first sentence of paragraph 158.

Moreover, as when interpreting a statute, so when identifying the policy objective of a statutory provision or assessing the 'proportionality' of a statutory provision, the court may need enlightenment on the nature and extent of the social problem (the 'mischief') at which the legislation is aimed. This may throw light on the rationale underlying the legislation.

The statement of rules came into being pursuant to the obligation of the Secretary of State laid down in the Immigration Act, section 3(2), which imposed upon the Secretary of State the statutory duty from time to time to lay before Parliament statements of the rules or of any changes in the rules laid down by him as to the practice to be followed in the administration of this Act regulating entry and stay in the United Kingdom.