3 Control of Delegated Legislation

Report
Delegated Legislation
Control of Delegated Legislation
Delegated Legislation
Control of Delegated Legislation
© The Law Bank
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Delegated Legislation
Control of Delegated Legislation
Objectives
• Describe parliamentary controls on delegated
legislation
• Describe judicial controls on delegated
legislation
• Evaluatethe effectiveness of these controls
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Delegated Legislation
Control of Delegated Legislation
Key Terms and Case Law
• Positive (or Affirmative) Resolution Procedure
• Negative resolution procedure
• Judicial Review
• Ultra Vires
• Procedural ultra vires
• Substantive ultra vires
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Delegated Legislation
Control of Delegated Legislation
Parliamentary Control
• Limits in enabling Act
• People and extent of power set out in the Act
• Sets out procedures for creating secondary
legislation (e.g. consultation)
• Parliament remains in control – Supremacy
• Power to repeal, amend and can make or
unmake any law
• PROBLEM – so much Parliament cannot check
it all
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Delegated Legislation
Control of Delegated Legislation
Parliamentary control – Bye-Laws
• Bye laws confirmed or approved by Government
Minister
• Example – Hampshire County Council – laws
under CYP 1933 – employment of young
children - checked by Health Secretary
• Ensures expertise controls
• Local expertise v technical expertise
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Delegated Legislation
Control of Delegated Legislation
Parliamentary control – Statutory Instruments
• Scrutiny Committee (Joint Select Committee on
Statutory Instruments)
• MPS and Peers
• Review SIs and refer provisions needing more
consideration back to parliament
• Main grounds for referral:
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Gone beyond or outside powers
Not in accordance with enabling Act
Unexpected usage
Unclear or defective
Imposes a tax or charge
Retrospective (and enabling Act does not allow for this)
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Delegated Legislation
Control of Delegated Legislation
Parliamentary control – Statutory Instruments
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This is an effective control as it is rigorous
Still impossible to review all SIs
No powers to amend only report back
Many findings ignored
House of Lords Delegated Powers Scrutiny Committee
checks all Bills for inappropriate enabling conditions
• Targeted before a Bill goes to committee stage
• This is a more effective control
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Delegated Legislation
Control of Delegated Legislation
Parliamentary control – Resolution
• Most SIs must be laid before Parliament
• Laid on table of House
• Parent Act state if it needs to be laid and what method
used.
• Two methods of laying legislation
• Positive (affirmative) and Negative
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Delegated Legislation
Control of Delegated Legislation
Parliamentary control – Positive Resolution
• The SI must be approved by one or both Houses within a
given time (28 – 40 days)
• E.G. Human Rights Act 1998 (see handout)
• Disadvantage – time consuming (should be saving
Parliament time)
• Can only be approved annulled or withdrawn (cannot be
amended)
• As the government has a majority it rarely loses the vote
• Therefore affirmative rarely used
• As will always be debated by Parliament it is used for
important or controversial issues
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Delegated Legislation
Control of Delegated Legislation
Parliamentary control – Negative Resolution
• The SI must be approved by Parliament (40 days) during
which time either house can annul
• Either House can then put forward a motion ‘prayer’ calling for
annulment
• Debate and a vote
• If either House vote to annul it does not become law
• Although mainly not annulled and becomes law
• Limited effect as no requirement for MPs to look at the SI
• Most not challenged and become law after 40 days
• Does give opportunity for any member to raise objections
• More time for debate using this control
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Delegated Legislation
Control of Delegated Legislation
Parliamentary control – Publication
• Statutory Instruments Act 1946
• If not published by HM Stationery Office then cannot be
prosecuted
• Therefore all SIs must be published
• Public have must have access even if they rarely see the
publication
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Delegated Legislation
Control of Delegated Legislation
Parliamentary control – Questions
• Minister can be questioned at Question Time or during
debates
• This gives publicity through media presence
• Minister has to explain and justify
• But politicians are skilled at answering questions so of
little real value
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Delegated Legislation
Control of Delegated Legislation
Parliamentary control – Removing Power
• Parliament may remove power to legislate from person
or body
• Done by amending or repealing the parent Act
• Upholds Parliamentary supremacy
• Also makes the person or body take care in drafting
legislation
• Volume of delegated legislation limits this control again
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Delegated Legislation
Control of Delegated Legislation
Judicial Control
• Challenged in High Court by Judicial Review procedure
• Defined in Ex Parte Vijayatunga (1988) – ‘Exercise of the
court’s inherent power at common law to determine
whether action is lawful or not’
• Only concerned with legality not merits or reasons
• If made beyond powers it can be declared ultra vires –
Beyond the Power
• Two type – procedural and substantive
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Delegated Legislation
Control of Delegated Legislation
Judicial Control – Procedural Ultra Vires
• How delegated legislation is made
• Some parent Acts specify method of creation
• Any delegated legislation made without following these
procedures can be declared ultra vires
• Agricultural, Horticultrural and Forestry Training Board
vAylesbury Mushroom Ltd (1972)
• Order declared void as a letter informing Aylesbury of
new law did not comply with requirement in parent Act
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Delegated Legislation
Control of Delegated Legislation
Agricultural Training Board vAylesbury Mushrooms [1972] 1 All ER 280
Legislation required the Minister to consult relevant bodies before making Orders of a certain type, and
through a clerical error there was no consultation with the Mushroom Growers' Association (who were
conceded to be a "relevant body" for this purpose).
Principle-The court ruled that the consultation requirement was mandatory, and that its breach made the
Order invalid as far as mushroom growers were concerned
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Delegated Legislation
Control of Delegated Legislation
Judicial Control – Substantive Ultra Vires
• Content of delegated legislation
• Any legislation beyond this content is ultra vires
• A-G vFulham Corporation (1921) – Provision of clothes
Washing Facilities – corporation set up a commercial
laundry = Ultra Vires
• Customs and Excise Commissioners v Cure and Deeley
Ltd (1962) – Collection of taxes – Commissioners
passed a law deciding HOW MUCH tax to collect
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Delegated Legislation
Control of Delegated Legislation
A.G. vFulham Corporation [1921] 1 Ch 442
This concerned legislation for the provision of provide public wash-houses.
Principle-The court held that this did not permit the local authority to open up a private laundry business.
And here a laundry (a place where clothes are washed by the Corporation) was maintained when all that was
authorised by statute was a wash-house (a place where one washes one's clothes one's self).
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Delegated Legislation
Control of Delegated Legislation
Customs and Excise v Cure &Deeley (1962) 1QB 340
Finance Act 1940 gave Customs and Excise power to make any law they wanted.
Principle-This was wrong as it gave a government department more power than Parliament
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Delegated Legislation
Control of Delegated Legislation
Judicial Control – Unreasonableness
• Courts may also declare ultra vires on basis of
unreasonableness
• Associated Provincial Picture Houses v Wednesbury
Corporation (1948) ‘Wednesbury Unreasonableness’
• Argued in conjunction with other cases e.g. R (Rogers)
vSwindon NHS Trust (2006) – Herceptin drug provision
• Court said policy was irrational and unreasonable so
therefore unlawful
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Delegated Legislation
Control of Delegated Legislation
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1947] 1 KB 223
In 1947 a cinema company, Associated Provincial Picture Houses, was granted a licence by the Wednesbury
Corporation, the local authority of the market town of Wednesbury in Staffordshire, to operate a cinema on
condition that no children under 15 were admitted to the cinema on Sundays. Associated Provincial Picture
Houses sought a declaration that such a condition was unacceptable, and outside the power of the Corporation
to impose.
Principle-The local authority had not acted unreasonably or ultra vires in imposing the
condition. Unreasonable test explained by Lord Greene has become a test in many areas of law.
The court held that it could not intervene to overturn the decision of the defendant simply because the court
disagreed with it. To have the right to intervene, the court would have to form the conclusion that:
1. the Wednesbury Corporation, in making that decision, took into account factors that ought not to have
been taken into account, or
2. the Corporation failed to take into account factors that ought to have been taken into account,
3. Or the decision was so unreasonable that no reasonable authority would ever consider imposing it.
The court held that the condition did not fall into any of these categories. Therefore, the claim failed and the
decision of the Wednesbury Corporation was upheld
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Delegated Legislation
Control of Delegated Legislation
Judicial Control – Other reasons
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Where it levies taxes
Where it allows sub-delegation
Where all interested parties have not been consulted
Where conflicts with EU legislation
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Delegated Legislation
Control of Delegated Legislation
Judicial Control – Effectiveness
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Control limited
Courts dependant on cases being brought before them
Rare for someone to question validity of law
Requires legal knowledge to do so
Judge cannot amend it only declare void
Where challenged he can make sure it is made in
accordance
• Remains Parliamentary sovereignty as judge only
declares according to Parliaments original Act
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Delegated Legislation
Control of Delegated Legislation
Task
• Complete exercises:
• The Roads Act gives the Highways Minister power to make changes
to the Highway Code by statutory instrument. A new Code is
introduced which requires cyclists to wear helmets at all times while
cycling and to cycle only in designated cycle lanes. The Order
becomes law on the date stated on it, but will be annulled if either
House passes a motion calling for its annulment within a certain
time. This time period is 40 days including the day on which it was
laid.
1. Is the Order subject to the affirmative or negative resolution
procedure?
2. The Keep Cycling Campaign consider that these changes are the
biggest threat to cycling for decades. Advise them how the these
changes can be removed from the new Code.
© The Law Bank
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Delegated Legislation
Control of Delegated Legislation
Objectives
• Describe parliamentary controls on delegated
legislation
• Describe judicial controls on delegated
legislation
• Evaluatethe effectiveness of these controls
© The Law Bank
25

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