Statutory Instruments Act

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 unreasonably1. 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 ministers2 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.

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.

The grounds, on which an SI can be challenged, are procedural and substantive ultra vires. Procedural Ultra Vires: is where the parent Act has made requirement of a certain procedure to be followed in the making of the SI, the instrument may be held to be invalid if that procedure is not followed. However, not all procedural errors will invalidate an SI. There has been a traditional view that those requirements, which are seen to be of directory in nature, a failure to comply will not invalidate the SI, and those, which are seen to be of mandatory in nature, a failure to comply will invalidate the SI.

There are 3 forms of Procedural Ultra Vires namely, Lack of consultation, Failure to Publish and Failure to Lay before Parliament. Lack of Consultation, occurs when the Minister introducing the SI, fails to comply with the Parent Act, which has specified a body to be consulted by the Minister. It is stated in the Organic Vegetables Act, that the Minister "shall consult any organization appearing to be representative of substantial numbers engaged in the activities affected".

This is quite common, in many instances the body will not be specified in the Parent Act, and will to the discretion of the Minister to consult a body that is deemed representative. The facts state that the Minister made an attempt (sent a draft of the SI with an invitation to comment) to consult the Organic Farmers Association (OFA), which would seem to be fairly representative of the area effected, as most organic producers belong to the association, without reply from the OFA, the Minister began consultation with the National Farmers Union (NFU).

However, the Association stated that it never received the Draft. Furthermore, it can be argued, whether the Minister has fulfilled his duty of consultation under the Act, as the NFU may not be seen as fairly representative of the area affected. However, as stated, it is to the Ministers discretion as to which body to consult providing consultation is effective3. It was established in Aylesbury Mushrooms Ltd4, the essence of "consultation" is the communication of a genuine invitation to give advice, and the mere sending of a letter, which is not received, is not sufficient.

It was held, that there had been no consultation, merely an attempt to consult, and the consultation with the MGA was deemed to be ineffective, therefore the order had no application to persons which were effected by the SI. It is therefore submitted that although the Minister has failed to consult a body that is representative of the area affected, there is no legal requirement to consult when making the SI5. Failure to Publish: occurs when the Minister introducing the SI has failed to publish and notify the area affected.

Prior to the Statutory Instruments Act (SIA)6, a failure to notify under the parent act was held to be merely directory in nature7. However, it would only come into operation when the person charged with infringing it had knowledge of the provisions under the SI8. Tony can make a statutory challenge to the SI under the SIA 1946. The SIA 1946 makes specific provisions for the publication of the SI, in s 2(1). Furthermore, s 3(2) provides a defence in the event of non-publication of the SI.

The SI however, will not be invalidated if it can be shown that reasonable steps had been taken to bring the contents of the instrument to the notice of the public or of the persons likely to be affected by it9. The facts state that although the SI had not been published by the Queens printer, it has been advertised in farmers journals, it would therefore seem that it has been brought to the attention of the persons likely to be affected by it, this will apply to Tom. It is therefore submitted that the failure to publish the SI will not have invalidated it.

These SI's are often laid before Parliament, (i. e. : made available for scrutiny by other MP's), this is essential when the enabling Act requires it to be scrutinised. But this is not always the case, and as regards SI's in general, there remain some doubts as to whether or not sufficient controls exist to ensure a fully democratic accountability. The laying procedure to be used is specified in the parent Act and will depend upon the nature of the delegated power and its political importance.

A few SI's have to be considered and approved by Parliament under the affirmative resolution procedure. Most are subject to the negative resolution procedure. This means that they will become law within 40 days unless an MP requests a debate. It appears from the facts that Tony will fall within the provisions under the SI, as he is in production of organic produce, it will be unlawful for him to ignore the provisions, unless Tony can successfully argue that failure to lay the instrument before the Commons has rendered it ineffective.

Section 4(1) of the Statutory Instruments Act 1946 (SIA), provides that where an instrument is required to be laid by the parent Act, the instrument shall be laid before Parliament. Although, the Organic Vegetable Act does not make such a provision, it is stated in the Act that it will be subject to the negative resolution procedure. This means that, it must be laid before Parliament (usually for 40 days) during which MP's can requests a debate or a prayer to annul it. There has thus been a complete failure to comply with s 4(1); the effect of this failure to lay on the validity of the instrument will now be considered.

In decided cases on the legality of failure to comply with express procedural requirements, the courts have tended to classify such requirements as either mandatory or directory. A breach of a requirement seen as mandatory has led to the action in question being held invalid, while breach of a directory requirement has left the act or decision standing. There is no direct authority for or against the view that SI's are directory or mandatory in nature but merely been persuasive indicators. Decided cases have indicated the laying before Parliament is directory10.

Furthermore the opinions of Erskine May, Allen and Graham-Harrison during the passage of the SIA 1946 gave further evidence that the requirement is not mandatory. Streatfield J11 however, stated that an SI is complete when it is first made and when it is laid before Parliament, the strength of the statement is somewhat limited as it was not said in the context of non-laying. It would appear from the evidence that failure to lay before Parliament does not always invalidate the SI. It appears from previous cases that there are difficulties for Tony in challenging the SI under Procedural Ultra Vires.

The courts however, post-SIA 1947 tend to consider, inter alia, 'the importance of the provision that has been disregarded'12 and the effect of non-compliance with the procedure13. Courts following this approach will ask themselves what the purpose was of the consultation requirement in question and whether the failure to take the step in question substantially detracted from the expressed purpose14. Tony can also make a challenge to the Organic Produce Regulations, SI 1984, under Substantive Ultra Vires.

In interpreting the width of the power to make instruments, the courts will apply certain presumptions to decide whether the SI has acted beyond its power. The SI 1984 provides a compulsory licensing scheme for organic producers, with an annual licence costing i?? 500 and production quotas for each organic producer. In A-G v Wilts Dairies15, it was established that an SI has no power to impose a tax unless it is stated expressly in the parent Act. It is clear from the facts that the parent Act (Organic Vegetables Act) has not expressly stated such a provision.

It is therefore submitted that the instrument has acted beyond its power. Furthermore, the provision of an annual licence and production quotas may be challenged on the grounds that it conflicts with the parent Act. The purpose of the Act was to 'encourage the production and sale of organic vegetables', and the introduction of such provisions under the SI can be seen to be contrary to the Act, which will void the SI. In conclusion, it is stressed that there is a great deal of uncertainty as to the procedural requirements of an SI.

Although certain provisions exist under SIA 1946, these provisions may be seen as directory in application by the courts. However, in view of the above arguments and the fact that the SI will affect Tony's livelihood, it is submitted that there is a reasonable chance that a court will hold the instrument to be unlawful and unreasonable. A quashing order has never been used to control delegated legislation, but if the instrument was found to be unlawful, a declaration to that effect would be granted.