4.11.2 Substantial ultra vires This is where the delegated legislation goes beyond what Parliament intended. In R v Secretary of State for Education and Employment, ex parte National Union of Teachers (2000) QBD, the High Court determined that an SI concerning teachers’ pay and appraisal arrangements went beyond the powers provided under the Education Act 1996. Therefore, the delegated legislation was declared to be ultra vires on substantive grounds. Except for 4.11.1 Procedural ultra vires This is where the enabling Act sets out the procedural rules to be followed by the body which has been given the delegated power. The court can find the delegated legislation to be ultra vires and void if these rules were not followed. In the Aylesbury Mushroom case (1972) Agricultural Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd (1972) 1 All ER 280 delegated legislation required the Minister of Labour to consult ‘any organisation &#x 4.11 Judicial control Delegated legislation is also subject to control by the courts whose judges can declare a piece of delegated legislation to be
ultra vires. Ultra vires means ‘beyond powers’, so the court would be saying that a piece of delegated legislation went beyond the powers granted by Parliament within the enabling Act. If the court does this, then the delegated legislation in question would be void and not effective. There are two types of ultra vires:
4.10 Parliamentary control Initially, Parliament has control in that the enabling or parent Act passed by Parliament sets out the framework or parameters within which delegated legislation is made. In addition, there are scrutiny committees in both Houses of Parliament whose role is to consider the delegated powers proposed by a Bill. However, these committees have limited power. European legislation is considered by a specific committee and local authority byelaws are usually subject to the approval of the Department 4.9 The control of delegated legislation You may have been surprised to read that through delegated legislation an enormous amount of law is made every year outside of the democratically elected parliamentary process and therefore this law is being made by non-elected people. There are, however, certain safeguards to ensure that delegated legislation is controlled by way of both parliamentary and judicial control. Except for third party materials and otherwise stated (see Author(s): 4.8 Professional regulations Certain professional bodies, such as The Solicitors Regulation Authority, have delegated authority under enabling legislation to regulate the conduct of their members. The Solicitors Regulation Authority has power to control the conduct of practising solicitors under the Solicitors Act 1974. The General Medical Council regulates the conduct of its members under the Medical Act of 1858. It has four main functions: to keep up-to-date registers of qualif 4.7 Court Rule committees Court Rule committees have delegated powers from such Acts as the Supreme Court Act 1981, the County Courts Act 1984 and the Magistrates’ Courts Act 1980, to make rules which govern procedure in particular courts. For example, the Criminal Procedure Rule Committee was established in 2004 to make rules of procedure for all the criminal courts in England and Wales, up to and including the Court of Appeal (Criminal Division). The Family Procedure Rule Committee was set up under the Courts Act 4.6 Orders in Council These are more correctly called Orders of the Legislative Committee of the Privy Council. The Government can make law through the Privy Council without going through the full parliamentary process. Orders in Council can be used by the Government in times of state emergency under the Emergency Powers Act 1920 and the Civil Contingencies Act 2004. However, they are also used to give legal effect to European law under the European Communities Act 1972 and to amend other types of law. An e 4.5 Byelaws Byelaws can be made by local authorities and certain other public corporations and companies concerning issues within the scope of their geographic or other areas of responsibility. So, a County Council can make byelaws affecting the whole county, whilst a District or Town Council can only make byelaws for the district or town. Byelaws are usually created when there is no general legislation that deals with an issue that concerns people in a local area. If a council wishes to make a byelaw it 4.4 Statutory Instruments The vast majority of delegated legislation is in the form of Statutory Instruments (SIs). SIs are rules and regulations made by Government ministers acting under the delegated power given to them or their department by Parliament in a broadly drafted parent or enabling Act concerning their area of responsibility, for example, health or transport or education. SIs are normally drafted by the legal department of the minister concerned and are just as much part of the law as their parent or enab 4.3 Types of delegated legislation There are different types of delegated legislation: Statutory Instruments byelaws Orders in Council Court Rule committees professional regulations. Except for third party materials and otherwise stated (see terms and conditions), this content is made available 3,3,7 Royal Assent You have already seen references to Royal Assent in this unit. The monarch formally assents to a Bill in order for it to pass into law. Royal Assent has never been withheld in recent times. Queen Anne was the last monarch to withhold a Royal Assent, when she blocked a Scottish Militia Bill in 1707. The Queen feared a Scottish militia might be turned against the monarchy. Since the sixteenth century no monarch has actually signed a Bill themselves. Instead, the monarch signs what are kno 6.6 Stages of an Executive Bill To provide a flavour of the consideration of Bills, we will now look at the stages of an Executive Bill. One of the unique features of the Scottish Parliament is its openness. There are processes for wide consultation, an open evidence process at committees, the ability of the public and interested parties to liaise directly with MSPs, and the ability to lobby for amendments to a Bill. For all these things the Scottish Parliament has received international recognition. An Executiv 4.2 Effect of the ECHR on English law prior to the Human Rights Act 1998 The Human Rights Act 1998 (HRA) received the Royal Assent on 9 November 1998, and the main provisions were brought into effect on 2 October 2000. However, the UK had by then been a signatory to and had ratified the ECHR for nearly fifty years. What was the effect, if any, of the Convention on UK domestic law? We have already noted the supremacy of Parliament as the main law-making body in the UK. Under English law international treaties do not become part of domestic law unless and until some 3.6 The terms of the European Convention on Human Rights In 1952 the HCPs agreed that the European Convention on Human Rights should be extended to cover additional rights and freedoms. At the time of drafting the original treaty there were heated debates about whether rights relating to property, education and democratic participation were fundamental human rights. As a compromise these were omitted from the original treaty. Their later inclusion was achieved by an instrument known as a protocol, which, although much shorter than the original ECHR 3.2 What is the European Convention on Human Rights? In the aftermath of the Second World War there were public disclosures of huge numbers of cases of brutal, inhuman and tyrannical treatment of people, frequently within the civilian populations of occupied countries. Many serious concerns arose about the way in which millions of people had been mistreated at the instigation of or with the connivance or concurrence of government. There was almost universal disgust and condemnation at the disclosures made, together with a general recognition th 3.1 Part B overview The European Convention on Human Rights was introduced in unit W100_4 Europe and the law, and through your previous studies you have probably already considered cases (such as that of Diane Pretty) where articles of the European Convention on Human Rights were under debate. Here you will look at its legal implications in more detail. You will consider how the European Convention on Human Rights came into being, why it was considered necessary to create such an instrument, what are its 2.4 Summary of Part A Part A explored the development of humanitarian and human rights law. The development of new democracies with written constitutions laid the framework for the general recognition of rights such as freedom of speech. General principles emerged: certain rights exist because a human being is entitled to ‘humanity’; those rights cannot be denied or taken away; recognition of the rule of law. 2.3 The Red Cross Humanitarian law was another area of international growth in the recognition of human rights. It gathered pace in the nineteenth century due to the work of Henri Durant, a Swiss philanthropist. He witnessed several battles where great atrocities were committed by the armies of nation states. These experiences led him to attempt to establish a permanent system for humanitarian relief, where private societies would supplement the work of army medical corps of nation states. In 1863 a conference 2.2 Slavery reform Some of the first international concerns over human rights, as they would now be recognised, were expressed about slavery at the end of the eighteenth century. Somerset's case in 1772 challenged the acceptance of slavery in the UK. This case is regarded as a turning point, as statutory abolition followed in the UK. Out of this changing social, political and legal attitude towards slavery grew a movement which sought to prohibit slavery internationally. It was not possible to secure the freedo
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