Delegated legislation — practice questions

A good answer would structure the analysis into Parliamentary and Judicial controls.

Parliamentary Controls:

• Effectiveness: The enabling Act is the ultimate control. Affirmative resolutions force debate. The Scrutiny Committee provides technical oversight.
• Weaknesses: The negative resolution procedure is weak, as most SIs pass without debate due to lack of time. The Scrutiny Committee can only report issues, not annul the SI itself. Party politics can mean the government's majority pushes SIs through regardless of criticism.

Judicial Controls (Ultra Vires):

• Effectiveness: Judicial review provides a vital check, as any citizen can challenge a piece of DL. Cases like Aylesbury Mushroom show it is effective against procedural errors. It upholds the rule of law by ensuring bodies only act within their given powers.
• Weaknesses: A court case is expensive, time-consuming, and requires an individual with the resources and standing to bring a challenge. The courts can only rule on the legality of the DL, not on its political merits. The 'Wednesbury unreasonableness' test has a very high threshold, making it hard to succeed on this ground.

Conclusion: While controls exist, their effectiveness is limited. Parliamentary controls are often hampered by lack of time and political dominance, while judicial controls are reactive and depend on an individual bringing a case. The system is a necessary compromise between efficiency and democratic accountability, but critics argue the balance has tipped too far towards the former.

This question requires an analysis of the validity of the Statutory Instrument (SI) using the doctrine of substantive ultra vires.

Step 1: Identify the Enabling Act and the Delegated Legislation.

• Enabling Act: The 'Clean Air Act 2023'.
• Delegated Legislation: The Statutory Instrument made by the Minister.

Step 2: Analyse Provision (a) - The £1,500 fine.

• The enabling Act explicitly states that fines 'must not exceed £1,000'.
• The SI imposes a fine of £1,500.
• Calculation: The fine in the SI (£1,500) is £500 higher than the maximum permitted by the enabling Act (£1,000).
• Conclusion: This part of the SI is clearly substantive ultra vires. The Minister has gone beyond the financial limit imposed by Parliament. A court would declare this provision void.

Step 3: Analyse Provision (b) - Requiring councils to fund charging points.

• The enabling Act grants power to make regulations 'for the reduction of vehicle emissions'.
• The SI requires councils to build and fund infrastructure. This is effectively imposing a financial burden or tax on local authorities.
• It is a long-established principle that there can be no taxation without the authority of Parliament. The power to make regulations to reduce emissions does not automatically include the power to compel others to spend money.
• Conclusion: This provision is also likely to be substantive ultra vires. The Minister has used the power for an improper purpose (imposing a financial duty) which was not authorised by the general wording of the enabling Act. This is similar to the principle in Attorney-General v Fulham Corporation, where a power for one purpose was used for another.

Overall Advice: Both key provisions of the Statutory Instrument are likely to be declared void by a court upon a challenge by judicial review, as they are ultra vires the powers granted by the Clean Air Act 2023.