delegated legislation

Control of Delegated Legislation

Delegated Legislation

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Objectives• Describe parliamentary controls on delegated

legislation

• Describe judicial controls on delegated legislation

• Evaluatethe effectiveness of these controls

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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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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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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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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:

– 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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Parliamentary control – Statutory Instruments

• 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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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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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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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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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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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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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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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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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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Agricultural Training Board vAylesbury Mushrooms [1972] 1 All ER 280Legislation 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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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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A.G. vFulham Corporation [1921] 1 Ch 442This 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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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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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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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, or2. 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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Judicial Control – Other reasons• 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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Judicial Control – Effectiveness• 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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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.

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Objectives• Describe parliamentary controls on delegated

legislation

• Describe judicial controls on delegated legislation

• Evaluatethe effectiveness of these controls

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delegated legislation

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