Sources of law and the legislative process — SQE1 Legal system question
A worked single-best-answer question on sources of law and the legislative process, with why each wrong option is wrong — the way SQE1 traps candidates.
The Licensing of Street Traders Act empowers the Secretary of State to make regulations 'setting the fees payable for a street trading licence'. The Secretary of State makes a statutory instrument which sets the fee and also creates a new criminal offence of trading within 50 metres of a school. The instrument was laid before Parliament and was not annulled. Kemal, a street trader prosecuted under the new offence, believes the Secretary of State had no power to create it.
Which of the following best describes the legal position?
- AKemal may argue that the provision creating the offence is ultra vires the parent Act and therefore invalid.
- BKemal cannot challenge the offence because the instrument was laid before Parliament and was not annulled.
- CKemal cannot challenge the offence because the courts may not question the validity of any legislation.
- DKemal's only remedy is to ask his MP to raise the matter with the Joint Committee on Statutory Instruments.
- EKemal may challenge the offence, but only by seeking a declaration of incompatibility under the Human Rights Act 1998.
Show answer and reasoning
Rule: Delegated legislation which goes beyond the powers conferred by the parent Act is ultra vires and can be held invalid by the courts, including when raised as a defence.
- B Laying before Parliament does not cure a lack of vires; the courts can still review the instrument. (wrong rule)
- C The rule against questioning validity (the enrolled Act rule) applies to Acts of Parliament, not to delegated legislation. (wrong rule)
- D Parliamentary scrutiny is a separate control and does not exclude judicial control of ultra vires delegated legislation. (answers a different question)
- E A declaration of incompatibility concerns primary legislation that cannot be read compatibly with Convention rights; it is not the route for an ultra vires challenge. (wrong rule)
Source: Boddington v British Transport Police [1999] 2 AC 143; Pickin v British Railways Board [1974] AC 765
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