Subordinate legislation and illegality
[5.34] Subordinate legislation can be defined as �an instrument made by a person or body (the delegate) under legislative powers conferred by Act (the enabling Act)’.[1024] In terms of illegality, the basic rule is that subordinate legislation will be ultra vires the enabling Act if it does not comply with the terms of the Act as read, where appropriate, with the UK’s constitutional statutes (on which see [5.04]-[5.33][1025]).
Subordinate legislaÂtion in Northern Ireland can, as such, be made at two constitutional levels and this can give rise to different considerations depending on the level at which the legislation has been made. For instance, where the legislation is made in the form of Statutory Rules under Acts of the Assembly, Orders in Council, and so on (see [5.27]-[5.28]), this will constitute subordinate legislation as conventionally understood and will be open to challenge on correspondingly conventional grounds (subordinate legislation can also take the form of, among other things, bye-laws made by local councils[1026]). Where, in contrast, the â€?subordinate’ legislation is in the form of Acts of the Assembly or Orders in Council made under the Northern Ireland Act 1998 and Northern Ireland Act 2000, respectively, conventional grounds for challenge may be of less relevance.[1027] While such measures may be quashed where they are incompatible with EU law and/or the ECHR (see [5.07], [5.16], and [5.24]), it is now established that there is only limited scope for more general vires challenges based upon common law grounds for review, at least where Acts of the Assembly are in issue.[1028] Challenges to Acts of the Assembly therefore need to account for the fact that the Assembly is an elected body that enjoys a demoÂcratic legitimacy, even if it is also true that it is not a body that has any legal sovereignty (see [5.25]-[5.26]).[1029][5.35] The conventional grounds for challenging the lawfulness of subordinate legislaÂtion such as Statutory Rules are largely the same as those that govern challenges to exercises of statutory discretion by administrative bodies.[1030] Statutory Rules and adminÂistrative decisions can, for instance, both be challenged with reference to EU law (see [5.07]-[5.08]); and they may also be challenged as contrary to the ECHR under the Human Rights Act 1998 or, where appropriate, section 24 of the Northern Ireland Act 1998 (see [5.16] and [5.27]).
Prior to the enactment of the Human Rights Act 1998, case law in England and Wales had established that it was also possible to challenge the legality of subordinate legislation, administrative decisions, and so on, with referÂence to common law fundamental rights standards.[1031] While the case law on administrative decisions was certainly of relevance in Northern Ireland,[1032] the decisions on subordinate legislation were arguably of less analogical value, at least in respect of Statutory Rules. This is because the case law in England and Wales held that subordinate instruments could interfere with an individual’s common law fundamental rights only where the empowering Act of Parliament provided for such interference either in express terms or by necessary implication.[1033] As Statutory Rules made prior to 1998 were largely made under Acts of the former Northern Ireland Parliament or Orders in Council, it was those Acts and Orders in Council that fell directly within the rule propounded in England and Wales as it was they, and not the Statutory Rules, that had been made under Acts of the Westminster Parliament (viz, the Government of Ireland Act 1920, the Northern Ireland (Temporary Provisions) Act 1972, and the Northern Ireland Act 1974).219 The point is, however, now largely moot as issues of human rights compliÂance—whether in respect of Acts of the Assembly, Orders in Council, and/or Statutory Rules—will typically be governed by the Human Rights Act 1998 and the Northern Ireland Act 1998.[5.36] Statutory Rules may also be challenged where they are argued to have been made with reference to irrelevant considerations/in the absence of relevant consideraÂtions, for an improper purpose, and/or in bad faith (see [5.43]-[5.52]. It is, moreover, possible to challenge subordinate legislation on the ground that it is procedurally flawed, although there are limits to common law constraints in this context. For instance, while subordinate legislation may be challenged as having been made in breach of a statutory requirement to consult specified parties220 the common law will not generally impose a duty to consult in the absence of a statutory obligation221 (a position which differs from that in respect of some administrative decisions222).
The underlying rationale here is simply that a common law requirement to consult when making legislation would, given the numbers of people potentially affected by a measure, be unduly burdensome both for the relevant authority and for the courts should the failure to consult be challenged in judicial review proceedings. The only apparent excepÂtions to this rule are where an applicant can demonstrate that they had a legitimate expectation of consultation or where an individual is to be affected by a particularly draconian decision that is in the form of subordinate legislation.223[5.37] Unreasonableness too is a ground for challenging Statutory Rules.224 Statutory Rules may, for instance, be vague and lacking in certainty and be challenged as unreasonÂable on that ground;225 and their content may also be challenged as manifestly unfair or as having been made in defiance of logic.226 Whether such arguments will prevail will, however, depend on the context of the dispute, the nature of the subordinate legislation in question, and judicial understandings of the appropriateness or otherwise
(suspect had no common law fundamental right to have a solicitor present during police interviews; and the courts would not infer the right given Parliament’s clear intention to exclude solicitors under the terms of Prevention of Terrorism (Temporary Provisions) Act 1989, s 14(1)).
219 And see, eg, Re McCullough’s Application [1997] NI 423 (art 65(b) of the Police and Criminal Evidence (NI) Order 1989, SI 1989/1341 (NI 12)—which empowered police officers to, among other things, photograph suspects—should not be given a narrow reading as it covered a wide range of activities carried out by officers in their dealings with suspects).
220 See further [7.23]-[7.24].
221 Re Northern Ireland Commissioner for Children and Young People’s Application [2004] NIQB 40, para 12, Girvan J, applying Bates v Lord Hailsham [1972] 3 All ER 1019.
222 See [7.33].
223 See, respectively, Re General Consumer Council’s Application [2006] NIQB 86, para 36, Weatherup J, and Bank Mellat v HM Treasury (No 2) [2013] UKSC 38, 39, [2013] 3 WLR 179. See further [7.25].
224 See [6.05]-[6.11].
225 Eg, McEldowney v Forde [1971] NI 11, 57ff, Lord Diplock.
226 Eg, R v Secretary of State for the Environment, ex p Nottinghamshire CC [1986] AC 240. of intervention.[1034] For example, arguments that equate vagueness with unreasonableness have previously been rejected where the legislation in question has been introduced at times of emergency[1035] (although such case law would now have to be read in the light of emergency case law under the Human Rights Act 1998[1036]); and the courts have also held that they should be slow to interfere with subordinate legislation on grounds of unreasonableness where the legislation has a pronounced socio-economic policy element.[1037] The courts have in similar vein emphasised that they will be slow to interfere with subordinate legislation that is subject to approval in Parliament, particularly when the point arises at pre-approval stage.[1038]
[5.38] There are three further points of importance about subordinate legislation. The first concerns the fora in which the legality of legislation can be challenged. Although a challenge may be made by way of application for judicial review,[1039] authority has established that arguments of illegality can be also be made collaterally, that is, within other proceedings. Such collateral challenges will typically be made in criminal proceedÂings where an individual who has been charged with an offence under subordinate legislation argues in their defence that the legislation itself is unlawful[1040] (collateral arguments may also be made in respect of decisions that preceded prosecution, that is, that the decisions were unlawful and that the prosecution is in that way flawed).
While such challenges will generally not be permitted where the defendant had prior opporÂtunity to challenge the legislation or decisions taken under it,[1041] the position is different where the individual only becomes aware of legislation once charged with an offence. Under these circumstances, the criminal proceedings will provide the first chance to challenge the legislation, and the courts presume that Parliament did not intend to deprive the defendant of an opportunity to defend himself or herself in this way (the presumption can be rebutted by express language in statute).[1042] Such openness to colÂlateral challenges within proceedings is perhaps also consonant with the courts’ more general aversion to so-called â€?satellite litigation’ whereby individuals in, for instance, criminal proceedings seek to stall the proceedings by raising a public law issue by way of a separate application for judicial review.[1043][5.39] The second point concerns the effect of a finding, on an application for judicial
review, that subordinate legislation is unlawful. Legislation that is ultra vires can, in short, be read as having never had legal effect.[1044] Marched to its logical conclusion such a reading would mean that anything done under the legislation would likewise be without legal effect and that an individual affected by the legislation could rely upon the judgment of the court.[1045] However, while this suggests that a finding of ultra vires could have a significant complicating impact, much will in fact depend on the remedy (if any) granted by the court. Even though the court may find that the legislation is unlawful, it may at the same time decline to grant a remedy whether for reason of the applicant’s failure to observe a procedural requirement[1046] or where it prefers to exercise its discretion to refuse relief.[1047] A court may equally grant a declaration that legislation is unlawful but refuse to grant an order of certiorari that would have the effect of quashing it.
Such legislation, while tainted by illegality, will in that way remain in force.[1048][5.40] The third point, which also goes to remedies, concerns severance. Where subÂordinate legislation is challenged and the court makes a finding of illegality in respect of one or more its provisions, it may be possible for the court to sever and quash those provisions while allowing the remainder of the legislation to remain in force.[1049] Whether this will be possible will very much depend on the structure of the legislation in question, and it may be that the â€?good’ cannot be separated from the â€?bad’ (through use of the so-called â€?blue pencil’ test[1050]). However, where it is possible to sever, this can have the dual benefit of protecting an individual from an illegality while at the same time allowing significant parts of a legislative scheme to remain in place.[1051] The courts can in this way reconcile some of the competing imperatives of judicial review.[1052]