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Cases - delegated legislation

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[Home][Index - Cases][ Cases sources of law][Cases - delegated legislation]
 

| Delegated legislation lecture notes, here |

 

Agricultural Training Board v Aylesbury Mushrooms Ltd. (1972)

Associated Provincial Picture Houses  Limited v Wednesbury Corporation

Bailey v Williamson (1873)

Customs and Excise v Cure & Deeley (1962)

DPP v Hutchinson (1990)

Kruse v Johnson (1898)

Lee v SS for Education (1967)

Nash v Finlay (1907)

Parker v Bournemouth Corp. (1902)

R (on the application of Bennion) v Chief Constable of the Merseyside Police 2001 CA

R v Secretary of State for the Home Department, ex p Leech [1993] CA

R v Secretary of State for Health, ex parte U. S. Tobacco International Inc. (1992)

R v Sheer Metalcraft Ltd (1954)

R v SS (ex parte US Tobacco)(1990)

R v Wood (1855)

Staden v Tarjanyi (1980)

Strickland v Hayes [1896]  QBD

Tagg, R v (Heather Susan) 2001 (CA)

 

Agricultural Training Board v Aylesbury Mushrooms Ltd (1972)

[Delegated Legislation supervision of the courts – procedural requirements]

Held
: providing the statute stated that there must be consultation - there is no requirement otherwise. However, there is no requirement to do any more than ask for the consulted parties' views - they can be ignored.

Associated Provincial Picture Houses Limited v Wednesbury Corporation

 

 

 

 [Delegated Legislation supervision of the courts – unreasonableness]
D wanted to restrict cinema access to children to improve school attendance

Held: 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

 

Bailey v Williamson (1873)

[Delegated Legislation supervision of the courts – procedural requirements]

Held
: The duty to lay before Parliament is directory.

 

Customs and Excise v Cure & Deeley (1962)

[Delegated Legislation – limits of enabling act]
Finance Act 1940 gave Customs and Excise power to make any law they wanted. This was wrong as it gave a government department more power than Parliament

 

DPP v Hutchinson (1990)

[Delegated Legislation supervision of the courts – defence to a charge]
Greenham Common women defended charges on the grounds that bye-laws should not have been made on common land

 

Kruse v Johnson (1898)

[Delegated Legislation supervision of the courts]
The meaning of unreasonableness was laid down.

Per Lord Russell:

"[that by-laws should be] "benevolently" construed. A by-law would be unreasonable "for instance, [if] they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.' A by-law is not unreasonable merely because judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there."

Lee v SS for Education (1967)

[Delegated Legislation supervision of the courts – procedural impropriety]
Reasonable notice" of change not given to Enfield Grammar School (given 5 days).

 

Nash v Finlay (1901) QBD

[Delegated Legislation supervision of the courts – lack of certainty]
"Not to annoy passengers in street", not specific enough.

 

Parker v Bournemouth Corp (1902) QBD

[Delegated Legislation supervision of the courts – Wednesbury Unreasonableness]
Hawking ban unlawful because agreement viz. Contract with LA may be unreasonable.  The case related to the prohibition of stalls on the foreshore.

 

R (on the application of Bennion) v Chief Constable of the Merseyside Police 2001 CA

[Delegated Legislation supervision of the courts – Natural justice—Bias]
A Chief Constable could properly adjudicate in disciplinary charges brought against an officer in his force notwithstanding that he was the respondent to proceedings brought by that officer in an employment tribunal.

 

R v Secretary of State for the Home Department, ex parte Leech [1993] CA

^[Delegated Legislation supervision of the courts – ultra vires]

The applicant, a prisoner, applied for judicial review of r 33(3) of the Prison Rules 1964 which allowed a prison governor to read every letter to or from a prisoner and stop any letter that was objectionable or of inordinate length. unless it was between a prisoner who was a party to proceedings and his legal adviser.

 

The question was were the rules ultra vires of the Prison Act 1952, which authorised the making of rules.

 

Held:   The more fundamental the right interfered with by a rule and the more drastic the interference, the more difficult it was to imply such a rule-making power.

 

A prisoner’s right of access to a solicitor for advice as to instituting proceedings was an inseparable part of his right of access to the court.

 

The rule created a substantial impediment to the exercise of the right to unimpeded access to the courts and to a solicitor for advice as to instituting proceedings.

 

Steyn LJ said:

"The authorised intrusion must ... be the minimum necessary to ensure that the correspondence is in truth bona fide legal correspondence."

Declaration that r 33(3) was ultra vires granted

R v Secretary of State for Health, ex parte U. S. Tobacco International Inc (1992)

[Delegated Legislation supervision of the courts – procedural requirements]
A ban on oral snuff was held illegal, as during the consultation process the company was not given the scientific grounds on which the ban was made.

 

Held: unfair consultation process can lead to the instrument being quashed.

 

R v Sheer Metalcraft Ltd (1954)

[Delegated Legislation supervision of the courts – procedural requirements]

Held: A statutory instrument was valid despite non-compliance with the publication requirements.
  The duty to publish is directory.

 

R v SS (ex parte US Tobacco)(1990)

[Delegated Legislation supervision of the courts – procedural impropriety]
‘Skull bandits’ given public money to build factory then Health Authority banned product.

 

R v Wood (1855)

[Delegated Legislation supervision of the courts – by-laws]
Removal of dust, ashes, and rubbish - could not include snow.

 

Staden v Tarjanyi (1980)

[Delegated Legislation supervision of the courts – by-laws]
By-law quashed for uncertainty. The by-law made it unlawful to fly a glider "in the pleasure ground".

Held: uncertain because it must mean in or over, but for it to mean this there must be "some lower level below which the glider must not fly."

 

Strickland v Hayes [1896]  QBD

 

Red triangle indicating important information

^[Delegate legislation - by-laws - supervision of the courts - by-laws severable - by-law uncertain - by-law ultra vires]

A by-law prohibiting profane or obscene songs contained the words “shall conduct himself in a proper, civil and decorous manner at all times”  These words fell in the same class and are uncertain as to the standard required. 

 

The by-law also purported to prohibit, the use of obscene language ‘in any street or public place or on land adjacent thereto’, the last words ‘on land adjacent thereto’ were beyond the power of the county council.

 

Lindley LJ said:

‘I have no doubt whatever that those words are bad. But that being so, is the rest of the bylaw bad? There is plenty of authority for saying that if a bylaw can be divided, one part may be rejected as bad while the rest may be held to be good. In the present case there is, I think, no difficulty whatever in severing the bylaw. If the words “on any land adjacent thereto” are omitted, the rest of the bylaw reads quite grammatically. The bylaw is, therefore, distinctly severable.’
 

The by-law was held to be uncertain and the court held the whole byelaw invalid.

Tagg, R v (Heather Susan) 2001 (CA)

[Delegated Legislation supervision of the courts – by-laws]
The Air Navigation Order (No. 2) 1995 Art.57 was not ultra vires because intoxication was one kind of conduct which could adversely affect the safety of an aircraft and thus there was vires within the Civil Aviation Act 1982 s.63(3)(h) to prohibit such behaviour.
Further, as the issue of T's intoxication was a matter for the jury, the judge's use of the dictionary definition
could not be faulted.
Appeal against conviction dismissed.

 

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