REVISION CHECKLIST FOR LECTURES 7-9

What is delegated legislation? What is a parent act?

 legally binding rules [in addition to 12-15 acts enacted by parliament (primary legislation)] giving
government ability to carry out its governmental functions
 rules made by members of executive under powers delegated to them by Parliament; parent act
delegates these powers

What are the various forms of delegated Legislation?

 parent act confers to ministers power to make
o Statutory Instruments
o Orders in Council (‘statutory’, not prerogative)
o Local instruments
o Orders, Regulations, Codes of Practice, Directions, Warrants, Schemes

How is delegated legislation controlled by Parliament?

 ministers are held accountable for their use of delegated legislation
o Ministerial Responsibility: Ministers are subject to general principles of accountability
and are answerable to their respective Parliaments for making of delegated legislation
o Discussion and approval in Parliament of Act delegating power to legislate (Parent Act)
- if it’s necessary for these powers to be conferred on ministers, if they have to be
broader/more limited, etc.
 joint committee on statutory instruments comprising of 7 members from HoC and 7 from HoL
carries out technical [legal] scrutiny to ensure that act complies with requirements and procedure,
eu law, echr, etc.
o provides reports to houses about points including
 Intra/ultra vires
 “Unusual or unexpected use of powers"
 “Defective drafting”
 “Any other ground which does not impinge on its merits or on the policy behind it”
 each house has its own specific committee
o HoL
 Delegated Powers and Regulatory Reform Committee: Examines Bills before HoL
and reports on powers proposed to be delegated to Ministers; looks at Parent Act;
provides technical scrutiny
 Secondary Legislation Scrutiny Committee: Examines policy merits of any
statutory instruments or regulations laid before HoL that are subject to
parliamentary procedure
o HoC
 Delegated Legislation Committees: policy control – consideration of merits under
affirmative procedure/negative procedure; can’t amend – can only accept or reject
 Regulatory Reform Committee: Henry VIII-style orders under Legislative &
Regulatory Reform Act 2006
o Scottish Parliament
 Delegated Powers and Law Reform Committee: Carries out ‘technical’ review of
delegated legislation
 Committees of Scottish Parliament: Carry out review of delegation in primary
legislation; consider merits of relevant delegated legislation
 judicial review by courts
o R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51
 act conferred powers on minister to set fees for access to employment tribunal;
minister set fees very high which reduced no. applications to employment tribunal;
had higher impact on raised taxes for women on maternity leave
 courts struck down orders bc they were held to be discriminatory against women
and despite minister having discretion to set fees in this case parliament had
created right to access to justice and to employment tribunal and these orders
rendered right ineffective
o Hoffmann-La Roche v SoS for Trade (1975): DL subject to JR
 pharmaceutical company fined for setting prices in excess of provisions in
delegated legislation; it was held that delegated legislation that had been approved
by both houses of Parliament through proper procedures could still be subject to
judicial review and didn't necessarily benefit from parliamentary sovereignty
o R v Sheer Metalcraft (1953): failure to publish doesn’t necessarily invalidate delegated
legislation so long as appropriate minister has taken reasonable steps to make sure
people affected by delegated legislation knew about it
 involved fine; claimants were arguing that bc delegated legislation hadn’t been
appropriately published they had no way of knowing about these legally binding
rules they were fined under and shouldn’t be bound by them
o Statutory Instruments Act 1946, Sec. 3 (2): it is defence for individuals who have
contravened statutory instrument to prove that instrument hadn’t been issued by His
Majesty's Stationery Office at date of alleged contravention unless it is proved that at that
date reasonable steps had been taken for purpose of bringing purport of instrument to
notice of public, or of persons likely to be affected by it, or of person charged
o Boddington v British Transport Police [1998] UKHL 13: established that defendant in
criminal proceedings is entitled to contend that subordinate legislation/administrative act
made under it was ultra vires
 Boddington was fined for smoking in train carriage under delegated legislation
made by railway services; he challenged fine imposed on him bc he said delegated
legislation was ultra vires – parent act authorised railway services to make some
carriages and railway services non-smoking made all carriages non-smoking
services; ultimately lost his case
o DPP v Hutchinson [1990] 2 AC 783: held that if one section of SI is declared invalid
principle of severability applies – if other sections can apply without one that was found
invalid they will continue to apply
 involved minister’s order to restrict access to piece of land used by protestors;
declared invalid by court
o Agricultural Training Board v Aylesbury Mushrooms [1972] 1 All ER 280: Held that
delegated legislation couldn’t be considered binding on affected parties who did not
receive letter consulting them because essence of “consultation” is communication of
genuine invitation to give advice; procedural flaw had been made
o R v SoS for Social Services, ex parte AMA [1986] 1 W.L.R. 1: Despite failure to consult
local authorities within required period of time regulations still stood because individuals
were challenging only fact that they hadn’t been consulted – not content of piece of
delegated legislation itself
 o R (Barker) v Bromley Council (2006): Courts should give effect to primacy of EU law which
requires that delegated legislation should give way to EU law that is directly applicable
[including Convention rights]

What are ‘Henry VIII’ powers?

 Henry VIII powers
o Included in Parent Act
o Authorise Ministers to make delegated legislation amending/repealing Acts of Parliament
 e.g. European Communities Act 1972 s2(2) authorises making of Orders in Council
and ministerial regulations to implement Community obligations of UK
 Advantages
 It’s easier for government to make changes than Parliament which must go
through whole legislative procedure
 Allows fine-tuning
o e.g. if parliamentary law isn’t fully compliant with EU law, without
invalidating UK Parliament HRA Act enables courts to make
declaration of incompatibility; it is then UK Parliament that has to
decide whether or not to change it – s10 enables government to
make these changes through remedial orders
o Barber and Young criticise these powers as “objectionable in constitutional terms”
because Parliament “cannot fully appreciate the uses to which it might be put” – conferring
these powers may open up possibilities for them to be used in way that Parliament didn’t
envision; believe they should be conferred on government very sparingly/in very narrow
and restrictive terms
o Lord Rodger in Martin v HM Advocate praised Henry VIII powers for allowing legislation
“to be effective” by allowing government to amend it when necessary which “involve[ed]
little more than updating statutory references or bringing the language of existing
legislation into conformity with the language of the proposed legislation”

What are affirmative and negative procedures?

 There are different ways delegated legislation can take effect [much simpler than parliamentary
legislative process]
o Some instruments require no Parliamentary scrutiny at all
o Negative resolution Procedure: SI is laid before Parliament and takes effect immediately
and will continue to take effect unless Parliament takes steps to disapprove it within 40-
day period; these SIs are ‘negative instruments’
o Positive Resolution Procedure: SI is laid before Parliament and must be actively approved
by Parliament within period of 40 days before taking effect; these SIs are ‘affirmative
instruments’
o Super-Affirmative Procedure: During 60-day period, SI will be scrutinised and subject to
representations, resolution of either House/report of a scrutiny committee or other
requirements
 Very rarely used because this procedure is not necessarily quicker than primary
legislative route
o It depends on Parent Act which SI uses which procedure – there is no definitive category

What are Tribunals? What is the significance of the Leggatt review?

 Tribunals are statutory bodies – created and regulated by state
 o Judicial – hear appeals by individuals against government decision-makers as well as
disputes between individuals [e.g. Employment Tribunal]
o Originally set up in ad hoc and confusing manner – review of decisions of public authority
on which statute had conferred power was done by tribunal consisting of members of
same public authority making decision; there were concerns about potential bias, judicial
independence, etc. so respective agencies responsible for administering courts and
tribunals have been merged into HM Courts and Tribunals Service to ensure judicial
independence of tribunal system
 How tribunals are different from judicial review as they’re both concerned with accountability of
state
o Tribunals are responsible for reconsidering merits of decision and can produce their own
decision
o Tribunals make their own findings of fact by hearing witnesses/considering evidence –
can conduct ‘De Novo’ review – whereas courts in judicial review are only concerned with
points of law/procedure
o Tribunals are statutory bodies whereas judicial review is inherent common law
supervisory jurisdiction
 Why we need tribunals
o Better able to deal with very high volume of cases generated by modern administrative
state
o More accessible – cheaper
o “Proportionate dispute resolution” – proportionate relationship between issue at stake in
dispute and costs and procedures used to resolve it as usually not a lot is at stake but it
is important money to appellant – it is cheaper way to get decision considered without
having to go through costly process of judicial review
o Tend to include legally qualified members and experts in subject matter on which they will
be deciding as they usually review technical, subject-based decisions
o Act as case management – as a result of growth of areas in which government expanded
its functions, there are lots of areas in lives of individuals that are affected by decisions of
public authorities leading to substantial increase in claims; tribunals avoid all these cases
going directly to and burdening courts
 Ad hoc, complicated system led to lots of different tribunals of different compositions following
different procedures which were regarded as problematic
 England and Wales
o Leggatt Review: Tribunals for Users: One System, One Service (2001) on “delivery of
justice through Tribunals other than ordinary courts of law” was done with aim of making
tribunal system more effective and user-friendly
 Its recommendations led to Tribunal Courts and Enforcement Act 2007 which “drew
together diverse and wide-ranging set of tribunals into single, unified, structure”
 Originally individuals didn’t need legal representation to argue claim before tribunal
but now legal representation at tribunals is increasingly necessary given complexity
of many areas of law [e.g. social security and immigration law]
 Promotes equality of arms between appellants who are ‘one-shotters’ and
have little experience with appealing to tribunals and government agencies
who are ‘repeat players’ and are experienced in contesting these claims
 ‘Enabling approach’ has been adopted for hearings which combines adversarial
process where judge sits back while parties put their arguments forward after which
judge makes decision] and inquisitorial process [where judges/members of tribunal
 have leading role in process – ask both parties questions, look into different facts,
can assist individual who isn’t legally trained in reaching truth of matter and
determine aspects that will lead to resolution of case] – it allows each side to put
forward their arguments but members of tribunal can also intervene
 Considered “a cooperative process…in which both the claimant and the
department play their part” that “gives an unrepresented appellant every
possible assistance to enable her to participate and to compensate for her
lack of skills or knowledge”
o 2007 Act created First-Tier Tribunal (FTT) and Upper Tribunal (UT); both are subdivided
into Chambers which each specialise in hearing cases on specific subject area [see First-
Tier Tribunal and Upper Tribunal (Chambers) Order 2010 for further details on their
function]
 FTT currently has 7 Chambers: General Regulatory Chamber, Health Education
and Social Care Chamber, Immigration and Asylum Chamber, Property Chamber,
Social Entitlement Chamber, Tax Chamber, War Pensions and Armed Forces
Compensation Chamber
 Upper Tribunal
 Has 4 Chambers: Administrative Appeals Chamber, Immigration and
Asylum Chamber of the UT, Lands Chamber, Tax and Chancery Chamber.
 Ordinarily hears appeals on points of law from FTT – decisions of public
authorities are usually heard by FTT; if individual is not satisfied with FTT’s
decision, there is possibility of appealing decision to UT
 First instance jurisdiction for specific matters
 Develops general Guidance for benefit of FTT
 Upper Tribunal is ‘superior court of record’ – its decisions are binding on
tribunals and chambers below
 Appeals can be brought to UT by any party on ground that FTT has made
error of law which includes
o Making perverse/irrational findings
o Failing to give adequate reasons
o Failing to take into account conflicts of fact
o Giving weight to immaterial matters
o Making material misdirection of law
o Procedural irregularity
 UT’s decisions are still subject to judicial review by Court of Session but only
where there is some important point of principle or some other compelling
reason
 Scotland
o Tribunals (Scotland) Act 2014 s3 set up streamlined two-tier structure for tribunals that
are devolved to, or created by, Acts of Scottish Parliament, under judicial leadership of
Lord President
o Scotland Act 2016 s39 amended Scotland Act 1998 Schedule 5 – Scottish tribunals don’t
have same functions of tribunal relating to reserved matters so far as those functions are
exercisable in relation to Scottish cases
What does Inquiries Act 2005 stipulate for inquiries?
 s1(1): Minister may cause inquiry to be held in relation to case if it appears to him that (a)
particular events have caused/could potentially cause public concern or (b) there is public
concern that particular events may have occurred
 s5: Minister must
o specify setting-up date; and before that date—
o must consult person he proposes to appoint, or has appointed, to inquiry panel as
chairman
o set out terms of reference of inquiry which he may amend if public interest requires;
state whether or not Minister proposes to appoint other members to inquiry panel, and
if so how many. […]
 s2(1): Inquiry can’t rule on individual’s civil or criminal liability – because this must be done with
courts
 s24: Chairman of inquiry must deliver report to Minister setting out (a) facts determined by inquiry
panel and (b) recommendations of panel once inquiry is concluded
o recommendations aren’t legally binding – it’s up to government and public authority to
decide whether or not to implement them and how
 criticisms of 2005 Act
o It removed Parliamentary involvement in inquiries – inquiries hold government/public
authority to account; limited role for Parliament in this; government ministers are given a
lot of power over inquiry itself
o At same time role of executive is strengthened; ministers decide on form, personnel, terms
of reference and under Inquiries Act ss13 and 14 they have power to stop/suspend inquiry
o discretionary decision but subject to judicial review; if brought for judicial review relevant
minister would have to put forward relevant considerations that led them to make decision
so there would be some accountability as to why they suspended/stopped inquiry

What is the significance of R (Amin) v Secretary of State for the Home Department
and Keyu and others v Secretary of State for Foreign and Commonwealth Affairs
and another?
 Can Minister’s power to establish/not to establish inquiry be challenged through judicial
review?
 R (Amin) v Secretary of State for the Home Department [2003] UKHL 51:
o Family successfully challenged through judicial review decision of Home Secretary not to
hold inquiry on death of their relative who was murdered while in legal custody; Court
relied on ECHR Art.2 right to life to find that there was obligation to investigate death of
petitioner’s relative as it was “in public interest” to do so
o Established that decision of Minister not to establish inquiry can be challenged through
judicial review – but only in some circumstances; this was exceptional, fact-specific case;
not all governmental refusals to hold an inquiry can be successfully challenged through
judicial review
 Keyu and others v Secretary of State for Foreign and Commonwealth Affairs and another [2015]
UKSC 69: Demonstrated that decision not to establish inquiry under Inquiries Act 2005 s1 wasn’t
open to challenge on common law grounds [i.e. judicial review principles]
o Involved deaths at hands of UK state in 1978; lapse of time meant that ECHR Art. 2
couldn’t apply; thus, they brought challenge on grounds that decision was irrational and
disproportionate; majority said it wasn’t unreasonable – but Lady Hale strongly dissented
  Lord Neuberger: “The respondents clearly considered the request for an inquiry
seriously and rejected it for reasons which are individually defensible and relevant,
and which cumulatively render it impossible to characterise their conclusion as
unreasonable, let alone irrational”.
 Lady Hale dissenting: Decision was unreasonable; respondents didn’t consider
public interest in properly inquiring into event of this magnitude, private interests of
relatives and survivors in knowing truth and importance of setting record straight

What is the difference between human rights and residual liberties?

 Civil liberties: We are free to do anything unless expressly prohibited
o In system that protects civil liberties, if law doesn’t prohibit it then we are free to do it
o e.g. people are free to hold public meetings bc it isn’t prohibited by law
 Human rights: list of statements that are ‘immune’ from government interference [or when
interference occurs it is permissible only on strictly limited conditions]

When was the ECHR drafted? When did it come into force? When was it ratified
by the UK? Who can petition the ECHR? What are some of the admissibility criteria
for the Strasbourg Court?
 ECHR was drafted/signed by UK in 1950, ratified in 1951 and came into force in 1953
 Court accepts petitions from individuals, NGOs, groups and other States
 Admissibility criteria
o Petitioner must have victim status – must qualify as being victim, i.e. SP has enacted law
violating Convention rights that directly affects them
o Petitioner must have exhausted all domestic remedies

What is the role of the Committee of Ministers of the Council of Europe? How are
judges elected? How do they serve?
 Court can’t strike down primary or secondary legislation of a contracting party; can only declare
that there has been violation of rights; ECHR Art.46 provides that decisions of European Court
of Human Rights are binding on state which must then take action to remedy situation
 Committee of Ministers: body of Council of Europe which supervises execution of European
Court of Human Rights’ judgments – ensures that member states comply with European Court
of Human Rights’ judgments
o Made up of ministers of foreign affairs of different member states of council of Europe
 There are 5 sections of Court [of 7 judges] and Grand Chamber [of 17 judges]; as general rule,
initially case goes to one of chambers but if case is seen as raising issue of notable importance
chamber can relinquish jurisdiction and send it directly to Grand Chamber
 ECHR Art.30: Where case raises serious question affecting interpretation of Convention or
where resolution of question might have result inconsistent with judgment previously delivered
by Court, Chamber may relinquish jurisdiction in favour of Grand Chamber
 ECHR Art.43: After chamber has reached decision, there is period of 3 months during which one
of parties [either state/individual] can request for this decision to be referred to Grand Chamber
but these requests are very rarely successful and only succeed when there is big split on
judgment
 Judges
o Serve non-renewable 9-year term; there is one judge for every state party to ECHR [47
judges in total]
 o When position is vacated state nominates 3 individuals and Parliamentary Assembly of
CoE elects judge; rules now state that at least one of them must be woman
o Current UK judge is Tim Iecke
o National judge is always part of Chamber examining application against her home state
because it is considered useful to have someone who has good knowledge of law of that
state
o Judges, however, don’t serve as state representatives/defender of state interests, but
instead serve in their individual capacity – they must be completely impartial; if judge can’t
sit because of some connections to case ad hoc judges [certain judges from UKSC] could
be called in just to sit in Chamber for specific case

What was the role of Convention rights in Scotland before the Human Rights Act
1998?
 UK is dualist state in relation to international law – if UK signs up to international treaty, it is
bound by that treaty in international law but provisions of that treaty don’t become part of
domestic law until act from UK Parliament provides that they do; thus, before HRA 1998 was
enacted individuals couldn’t bring human rights claims to UK courts under convention; they had
to use judicial review and grounds for judicial review; if that failed, they could go to European
Court of Human Rights and bring their case against UK and bring out full set of human rights
arguments
 There was however some slow development in relation to use/consideration by UK courts
leading up to HRA 1998
o Kaur v. Lord Advocate (1980): ECHR couldn’t be referred to even as aid to interpretation
of statute
o R v Secretary of State for the Home Department, ex p Brind (1991): Where there is
statutory ambiguity, interpretation compatible with Convention should be preferred
because this is presumably what Parliament wanted
 Developments came a bit slower in Scotland
o In Anderson v HM Advocate (1996), HoL observed that ECHR reflected principles that
have long been part of Scots law; HoL was prepared to use ECHR as aid to interpretation
in Scottish cases; however, since Anderson didn’t involve question of statutory ambiguity,
it wasn’t clear if decision had brought Scots law in line with English law as established in
Brind
o T, Petitioner (1997): Equivalent case to Brind for Scotland