Orders in Council are identified as the third type of delegated legislation. The parent act for Orders in Council is the Emergency Powers Act 1920. This gave the Crown and the Privy Council the authority to make Orders in Council. This authority is only ever exercised during times of emergency when Parliament is not sitting.
(b) (i) Delegated legislation can be challenged in the courts on the grounds that it is considered to be ultra virus (beyond the powers set). I.e. it goes beyond the powers set within the Enabling Act by parliament. It can be challenged by the means of Judicial Review. (See lines 2-3 in source)
There are two types of Ultra virus; they are Procedural Ultra virus and Substantive Ultra virus. These are the first two reasons as to why delegated legislation can be challenged in the courts.
Procedural Ultra virus is when the legislation making body has gone beyond the powers set by Parliament in the enabling act by not following the correct procedure. This was the reason used in the Aylesbury Mushrooms Case (1972), where the Minister concerned had to consult ‘any organisation … appearing to him being representative of substantial numbers of employers engaging in the activity concerned’. He failed to consult the Mushroom Growers’ Association, which represented about 85% of all mushroom growers, but did consult the National Farmers’ Union (NFU) who were also affected by the order. This meant that his order to establish a training board was invalid as against mushroom growers, but valid to the farmers, as the NFU were consulted.
Substantive Ultra virus is when the minister goes beyond the power set to them in the Parent Act. This can be highlighted by the Customs & Excise v Cure & Deeley ltd (1962). In this case the government minister had set taxes, which cannot be done by delegated legislation because only an elected body can set taxes or charges.
The third reason why delegated legislation can be challenged in the courts is Unreasonableness. A piece of delegated legislation is deemed unreasonable if it makes unreasonable regulations. For example in the Strictland v Hayes Borough Council (1896), when a bylaw prohibiting the singing or reciting of any obscene song or ballad and the use of obscene language generally, was held to be unreasonable because it was to widely drawn in that it covered acts done in private as well as those in public.
(ii) If a challenge is successful then there are remedies available. Firstly there is certiorari where a decision is simply quashed.
The second Latin term that can be used when there is a successful claim is Mandamus, this is an order that a course of action should be followed.
Thirdly, and finally there is Prohibition, which means that a course of action cannot be followed.
(c) There are many advantages of delegated legislation. Firstly there is insufficient parliamentary time as parliament doesn’t have the time to consider & debate every detailed rule necessary for efficient government.
Secondly with delegated legislation ministers can have the benefit of further consultation before regulations are drawn up.
Delegated legislation is also more flexible. In an emergency parliament may not be able to pass law quickly enough therefore delegated legislation is sometimes preferred. It can also be revoked or amended easily, should it be necessary.
There is also the technicality of the subject matter, parliament may not have the necessary technical expertise or knowledge required.
With delegated legislation, statutory instruments in particular, ministers can respond to new or unforeseen situations by amending or amplifying statutory instruments.
The final advantage is local knowledge – local bylaws in particular can only be made effectively with awareness of the locality.
There are also a few criticisms or disadvantages of delegated legislation.
The main criticism is that it takes away law making from the House of Commons and allows non-elected bodies to make law; therefore Parliament only has limited control over delegated legislation.
A second criticism would be that of sub-delegation, which means that authority to make law is passed down so people do not always feel the right people are making the law.
There is a certain lack of publicity with delegated legislation, which means at times people are not sure of what the law is at the present time.
The final criticism is Obscure wording, which results in confusion, as it can be difficult to understand.
(d) (i) The situation might be subject to challenge in the courts because it appears to be unreasonable. There is a of unreasonableness therefore substantive ultra virus as it is discriminating against people arriving from the less wealthier regions; Asia, Africa and Latin America. It is preventing migrants from entering, not just the economic migrants who are the ones it is set to prevent.
(ii) This situation might be subject to challenge in the courts because there is a fair case of Procedural Ultra virus, as the Home Secretary has not followed the correct procedure and consulted local authorities and held meetings with local residents. Instead the Home Secretary has provided a camp near a town without consulting the local council or holding a public meeting.
