Hoffmann-La Roche v Trade and Industry Secretary [1975] AC 295

Key points

  • It is possible for the courts to impugn the validity of a piece of subordinate legislation irrespective of whether it has been approved by the Houses of Parliament
  • It is for the person against whom the interim injunction is sought to enforce a subordinate legislation to show reason why justice requires that the injunction should not be granted or should only be granted on terms

Facts

  • There was an inquiry by the Monopolies Commission on the level of profits made by the appellant companies on certain patented tranquillising drug
  • Following the report, the Secretary of State for Trade and Industry laid before Parliament the first of three identical consecutive statutory orders directing the appellants to reduce the prices of the drugs
  • Both Houses of Parliament approved the third order
  • The appellants informed the Secretary of State that they would not obey the order and brought proceedings against him claiming declarations that the procedures adopted were contrary to the rules of natural justice and that the order was ultra vires
  • The Secretary of State brought proceedings for an injunction restraining the appellants from charging any prices in excess of those specified in the order
  • The companies appealed

Issue

  • Is it possible to impugn the validity of a piece of subordinate legislation irrespective of whether or not it has been approved by the Houses of Parliament?
  • Until challenged, must the courts presume the legislation is effective?

Held (House of Lords)

  • Appeal dismissed; the Secretary of State was entitled to the injunction which he sought

Lord Reid

  • “An order made under statutory authority is as much the law of the land as an Act of Parliament unless and until it has been found to be ultra vires”: p.341
  • “There may well be cases when a court ought to refuse an interim injunction or only to grant it on terms. But I think that it is for the person against whom the interim injunction is sought to show special reason why justice requires that the injunction should not be granted or should only be granted on terms”: p.341

Lord Morris

  • The order in question had the force of the law
  • “A third order…was laid before Parliament… that order was approved by affirmative resolution of the House of Commons…it was approved by affirmative resolution of the House of Lords….The order then undoubtedly had the force of law. Obedience to it was just as obligatory as would be obedience to an Act of Parliament”: p.349
  • “What the court is asked to enforce is a statutory instrument which each House of Parliament has had the opportunity to reject but which each House has positively affirmed”: p.352
  • “In certain events the court could declare that what had been laid before Parliament was something which was laid before it in excess of a Minister’s powers it must remain true that unless and until that is shown the statutory instrument is part of the law of the land”: p.352
  • However on the facts “the approach of the court must be that the law is to be enforced”: p.352

Lord Diplock

  • “The courts have jurisdiction to declare it (an order) to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the previous Act of Parliament under which the order purported to be made, and this is so whether the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects)”: p.365
  • “The courts as the judicial arm of government do not act on their own initiative. Their jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings”: p.365

Commentary

  • The principal mechanism for challenging subordinate legislation before the courts is by proceedings in the High Court for judicial review on the grounds that the legislation is ultra vires or otherwise improper
  • The courts will approach the exercise of a power to make subordinate legislation by presuming that the delegate of the power to legislate was entitled to exercise it as he chose, subject to limitations