The purpose of this paper is to advise Tony who is an organic farmer

Authors Avatar

PUBLIC LAW 1: (UJC003C1)                  02971958        GROUP 1                           GROUP 1

The purpose of this paper is to advise Tony who is an organic farmer, of how the statutory instrument provided by the Secretary of State for Food and Rural Affairs under the power of Parliament through Delegated Legislation will apply to him and to establish whether there are any grounds for challenge to such legislation. To do this I will discuss the general principles that need to be followed for such legislation to be implemented and legal control over this type of legislation.

Delegation has always been a necessary part of any system of administration or government. Indeed, government today simply could not handle its considerable responsibilities without delegating many of its tasks to others. The most common type of delegated legislation is that of statutory instruments (SI’s). The SI’s are made by Government Ministers working within the boundaries of Parent Acts (Acts of Parliament); the Ministries are empowered to introduce statutory instruments, namely those laws that the respective Ministries choose to make. There is no requirement for such laws to pass through the normal (and often lengthy) parliamentary process that is essential for actual Acts of Parliament. This saves much delay, and allows Ministers introduce SI’s as and when the Ministers deem it necessary. However, certain provisions exist in relation to the procedural requirements of an SI (these are as follows).

It is important that powers delegated from government to others are subject to some form of higher control. But theory is one thing, practice is another, and effective control of a vast array of delegated legislation is not always an easy task. However, statutory instruments are subject to review from one of the parliamentary committees, namely the Joint Select Committee on Statutory Instruments. Its authority is somewhat limited however, and although this committee is allowed to express its reservations concerning statutory instruments, it has no power to actually overrule them.

One crucial distinction exists between Acts of Parliament and delegated legislation. For while the courts cannot set aside Acts of Parliament, they can set aside delegated legislation. Now, if delegated legislation is set aside, it tends to be when an Authority (e.g.: a County Council) exceeds those powers which have been provided by the delegated legislation in question. This is sometimes termed as acting ultra vires (beyond ones powers). In addition, the courts can set aside a law if it holds that an Authority has acted unreasonably. A further possible remedy available nowadays is by way of a judicial review. A direct challenge may be made, Held in the High Court, the judicial review hearing enjoys a growing status. Indeed, even the authority of government ministers has been overruled on occasions. But there are limits here, and a judicial review will be unlikely (very unlikely in fact) to intervene if delegated legislation has been ‘laid before’ Parliament. This after all, would effectively amount to a ‘trespass’ into the sovereignty of Parliament itself.

Join now!

In order to challenge the Organic Produce Regulations, SI 1984, Tony must make an application for judicial review. He must apply under r 54 of the Civil Procedure Rules promptly, and in any event within three months of the circumstances giving rise to the complaint (r 54.5). Furthermore, it is essential for Tony to demonstrate a sufficient interest in the decision complained under s 31(3) of the Supreme Court Act 1981. This should be relatively easy to establish as the facts state that Tony is an organic farmer who specialises in the produce of a variety of organic vegetables.

...

This is a preview of the whole essay