Administrative Rules in British Law
| Date | 01 September 1994 |
| Published date | 01 September 1994 |
| DOI | 10.1177/1023263X9400100305 |
| Subject Matter | Article |
H.E. Broring *
Administrative Rules in British Law
§1. Administrative Rules Recognized as Peculiar Rules
This article is about administrative non-legal rules, known as standards, self-imposed
policies, circulars, policy rules, general statements ofpolicy, administrative instructions,
extra-statutory instruments, guidelines, quasi-legislation, etc.. Following Baldwin and
Houghton, such rules will hereafter be referred to as administrative rules. IMore or
less in contrast to French, German, Belgian and Dutch law, British law seems to take
on a very ambiguous attitude towards administrative rules. This article attempts to
explain why the British still struggle with the legal position of these rules. It will also
make clear that, in essence, the legal function of administrative rules in the United
Kingdom is the same as in continental countries. Differences, as far as they exist, relate
primarily to attitude.
British doctrine deals with administrative rules under a number of different headings,
such as: 'delegated legislation', 'legislative powers', 'ultra vires', 'discretion' or a
specific theme. This divergent treatment of the subject seems to confirm that admi-
nistrative rules do not have a firm position in the British legal doctrine. Nevertheless,
as early as 1944 (Meggary, 'quasi-legislation')? administrative rules were recognized
as a kind
of
peculiar rules: rules which, unlike (delegated) legislation, are not based on
a legislative power.
The most widely accepted concept of administrative rules is that of rules structuring or
restricting discretion. 3Some administrative rules are, however, regarded as an instru-
ment for interpreting the law. Another very important distinction is that made between
administrative rules established by an administrative authority to regulate its own action,
*Senior Lecturer in Administrative Law at the University of Groningen (NL).
I. R. Baldwin and J. Houghton, 'Circular arguments: the status and legitimacy of administrative rules',
3Public Law (1986), 239.
2. Megarry, 'Administrative Quasi-Legislation', 60 Law Quanerly Review (1994), 125.
3. Note structuring differs from restricting. 'Restricting' always implies limitation, whilst this is not
necessarily the case with 'structuring'.
MJ 1 (1994) 273
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