1. Delegated Legislation - Types
Date: Saturday, 01 December 2018
Delegated Legislation - Types
Learning Objectives
Describe the different controls on delegated legislation
TIF: Analyse the advantages and disadvantages of delegated legislation
Specification Link
Parliamentary and judicial controls on delegated legislation.
Key Terms: Positive (or Affirmative) Resolution Procedure, Negative resolution procedure, Judicial Review, Ultra Vires, Procedural ultra vires, Substantive ultra vires
Starter - Suggest which type of delegated legislation would be used in the following circumstances: 15
To transfer the responsibilities for university education from the Education Department to the newly created Department of Higher Education
Designing a new road
A law introducing updated health and safety requirements
Increasing the amount of a fine for failing to travel with a valid train ticket
Declaring a ‘state of emergency’ to cope with widespread floods

2. Control by Parliament Control by Courts
As delegated legislation in many instances is made by non-elected bodies and, since there are so many people with the power to make delegated legislation, it is important that there should be some control over delegated legislation.
There are two main forms of control:
Control by Parliament
Enabling Act
Delegated Powers Scrutiny Committee
Affirmative resolution
Scrutiny Committee
Control by Courts
Judicial Review
Doctrine of Ultra Vires

3. Agricultural Training Board v Aylesbury Mushrooms [1972] 1 All ER 280
Legislation 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

4. A.G. v Fulham Corporation [1921] 1 Ch 442
This 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).

5. 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

6. Associated Provincial Picture Houses Ltd
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:
the Wednesbury Corporation, in making that decision, took into account factors that ought not to have been taken into account, or
the Corporation failed to take into account factors that ought to have been taken into account,
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