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N2-4A. Secondary legislation

Distinction between primary and secondary legislation

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"[20] The draft order, once formally made, would, of course, be secondary, or subordinate, legislation, unlike LASPO itself which, as a statute, is primary legislation. Primary legislation is initiated by a Bill which is placed before Parliament. To the extent that Parliament considers it appropriate, all or any of the provisions of a Bill can be subject to detailed scrutiny, discussion, and amendment in Parliament before being formally enacted as primary legislation; it is then formally approved by the monarch, whereupon it becomes a statute. In our system of parliamentary supremacy (subject to arguable extreme exceptions, which I hope and expect will never have to be tested in practice), it is not open to a court to challenge or refuse to apply a statute, save to the extent that Parliament authorises or requires a court to do so.

[21] Subordinate legislation consists of legislation made by members of the Executive (often, as in this case, by Government ministers), almost always pursuant to an authority given by Parliament in primary legislation. The draft order in the present case would be a statutory instrument, which is a type of subordinate legislation which must be laid in draft before Parliament. Some statutory instruments are subject to the negative resolution procedure - ie they will become law unless, within a specified period, they are debated and voted down. Other statutory instruments, such as the draft order in this case, are subject to the affirmative resolution procedure - ie they can only become law if they are formally approved by Parliament - see subsections (6) and (7)(a) of section 41." (R oao The Public Law Project) v. Lord Chancellor [2016] UKSC 39, Lord Neuberger)

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Distinction between primary and secondary legislation

- Secondary legislation usually concerned with subsidiary matters such as procedure

 

"[24]  Normally, statutory provisions which provide for subordinate legislation are concerned with subsidiary issues such as procedural rules, practice directions, and forms of notice; hence statutory instruments are frequently referred to as regulations. However, such statutory provisions sometimes permit more substantive issues to be covered by subordinate legislation, and, as is the case with section 9(2)(b) of LASPO, they sometimes permit subordinate legislation which actually amends the statute concerned (or even another statute), by addition, deletion or variation." (R oao The Public Law Project) v. Lord Chancellor [2016] UKSC 39, Lord Neuberger)

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Lawfulness of secondary legislation can be challenged

 

"[22] Although they can be said to have been approved by Parliament, draft statutory instruments, even those subject to the affirmative resolution procedure, are not subject to the same legislative scrutiny as bills; and, unlike bills, they cannot be amended by Parliament. Accordingly, it is well established that, unlike statutes, the lawfulness of statutory instruments (like other subordinate legislation) can be challenged in court. As Lord Diplock said in F Hoffmann-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295, 365, "even though [subordinate legislation] is contained in an order made by statutory instrument approved by resolutions of both Houses of Parliament, ... I entertain no doubt that the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the ... Act of Parliament under which the order [was] purported to be made ..."." (R oao The Public Law Project) v. Lord Chancellor [2016] UKSC 39, Lord Neuberger)

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- Secondary legislation usually concerned with subsidiary matters such as procedure
Lawfulness of secondary legislation can be challenged

Invalid if has an effect or made for a purpose that is ultra vires

 

"[23] Subordinate legislation will be held by a court to be invalid if it has an effect, or is made for a purpose, which is ultra vires, that is, outside the scope of the statutory power pursuant to which it was purportedly made. In declaring subordinate legislation to be invalid in such a case, the court is upholding the supremacy of Parliament over the Executive. That is because the court is preventing a member of the Executive from making an order which is outside the scope of the power which Parliament has given him or her by means of the statute concerned. Accordingly, when, as in this case, it is contended that actual or intended subordinate legislation is ultra vires, it is necessary for a court to determine the scope of the statutorily conferred power to make that legislation." (R oao The Public Law Project) v. Lord Chancellor [2016] UKSC 39, Lord Neuberger)

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Invalid if has an effect or made for a purpose that is ultra vires

Power to amend primary legislation by secondary legislation (Henry VIII power)

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Power to amend primary legislation by secondary legislation (Henry VIII power)

- Any doubt as to scope of power resolved restrictively

 

"[27] In two cases, R v Secretary of State for Social Security, Ex p Britnell [1991] 1 WLR 198, 204 and R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 383, the House of Lords has cited with approval the following observation of Lord Donaldson MR in McKiernon v Secretary of State for Social Security, The Times, November 1989; Court of Appeal (Civil Division) Transcript No 1017 of 1989, which is to much the same effect:

"Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination by Parliament and cannot be amended. The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach."

[28] Immediately after quoting this passage in Spath Holme, Lord Bingham went on to say "[r]ecognition of Parliament's primary law-making role in my view requires such an approach". He went on to add that, where there is "little room for doubt about the scope of the power" in the statute concerned, it is not for the courts to cut down that scope by some artificial reading of the power.(R oao The Public Law Project) v. Lord Chancellor [2016] UKSC 39, Lord Neuberger)

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"[39] It is now well established that any genuine doubt about the scope of the power conferred by such a provision should be resolved in favour of a restrictive approach. The leading authority is R (on the application of Public Law Project) v Secretary of State for Justice [2016] UKSC 39[2016] AC 1531 ("Public Law Project"), where the Supreme Court decided that a proposed order amending the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") to restrict legal aid by reference to a residence requirement was ultra vires the power accorded to the Lord Chancellor by that Act." (HMRC v. Arrbab [2024] EWCA Civ 16, Falk, Baker, Snowden LJJ)

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- Any doubt as to scope of power resolved restrictively

- Power to vary or omit services available to individuals did not include power to exclude individuals on the basis of unrelated factors

 

"[29] The argument that the draft order is ultra vires the powers granted to the Lord Chancellor is, in essence, as follows. The exclusion of a specific group of people from the right to receive civil legal services in relation to an issue, on the ground of personal circumstances or characteristics (namely those not lawfully resident in the UK, Crown Dependencies or British Overseas Territories) which have nothing to do with the nature of the issue or services involved or the individual's need, or ability to pay, for the services, is simply not within the scope of the power accorded to the Lord Chancellor by section 9(2)(b) of LASPO, and nothing in section 41 undermines that contention.

[30] In my view, that argument is sound, and should be accepted. Turning to section 9(2)(b) itself, as a matter of ordinary language, the relevant parts of the draft order do not seek to "vary or omit services": rather they seek to reduce the class of individuals who are entitled to receive those services by reference to a personal characteristic or circumstance unrelated to the services. Of course, the words of section 9(2)(b) have to be interpreted in their context, and I accept that a sufficiently clear and strong context could justify a different conclusion, in the sense that the words of section 9(2)(b) could, as a matter of language, just about extend to a regulation such as the draft order. Nonetheless, that is not their natural meaning, and, of course, the natural meaning of the words in question is an important factor in an issue of statutory interpretation, particularly when they suggest that a so-called Henry VIII power does not extend to authorise the subordinate legislation in question.

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[36] The Court of Appeal concluded that section 41, and in particular section 41(2)(b), could be invoked to defeat this contention. It is true that section 41(2)(b) permits any order made under section 9(2)(b) to "make provision by reference to ... services provided for a particular class of individual". However, I cannot accept that this means that the power to make orders under section 9(2)(b) is thereby extended to exclude a whole class of individuals from the scope of Part 1 of LASPO by reference to their residence. Section 41 is clearly intended to grant ancillary powers to those powers which are, as it were, primarily granted by provisions such as section 9: it is not intended to permit an alteration in the nature, or a substantive extension, of those powers. The observations in Craies, cited in para 26 above, is very much in point. In my view, in relation to his powers under section 9(2), section 41(2)(b) enables the Lord Chancellor to make limitations such as those already found in paras 3(a) and 39(a) of Part 1 of Schedule 1 to LASPO, and explained in para 8 above." (R oao The Public Law Project) v. Lord Chancellor [2016] UKSC 39, Lord Neuberger)

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- Power to vary or omit services available to individuals did not include power to exclude individuals on the basis of unrelated factors

- Unaffected by whether secondary legislation approved by House of Commons

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"[69] HMRC further relied on the fact that the 2014 Order was approved by the House of Commons under the affirmative procedure required by s.124(8) FA 2008. However, as is clear from the citation by Lord Neuberger in Public Law Project at [27] (set out above), approval whether by negative or affirmative resolution does not immunise secondary legislation from an ultra vires challenge. I would further observe that there is no indication that the impact of the 2014 Order on claimants in Mr Arrbab's position was considered." (HMRC v. Arrbab [2024] EWCA Civ 16, Falk, Baker, Snowden LJJ)

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- Unaffected by whether secondary legislation approved by House of Commons

- Power to make provision in connection with reviews and appeals did not permit mandatory review procedure

 

"[52] On a literal interpretation of s.124, it might be read as permitting the introduction of a mandatory review process in the manner provided for by s.38(1A) of the 2002 Act. This is because it permits provision to be made "for and in connection with reviews" and "in connection with appeals" (sub-section (1)). Further, sub-section (2)(a)(ii) expressly permits "provision about the circumstances in which, or the time within which … an appeal may be made". However, I am persuaded that such an interpretation would not be correct.

[53] As Lord Neuberger explained in Public Law Project, the delegation of power to modify primary legislation is an exceptional course. Any real doubt about the scope of the power must be resolved by a restrictive approach. Lord Neuberger also approved a statement in Craies on Legislation that the more general the words used "the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature's contemplation". It is undeniable that the words used in s.124 are general in nature.

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[62] ToTel concerned the use of s.124 to amend VAT legislation to exclude a right of appeal to the Upper Tribunal from a decision of the FTT on a hardship application, namely an application that a VAT appeal should be heard without the prior payment of tax that is usually required, on grounds of hardship. This court decided that the relevant provision was ultra vires s.124 because the phrase "in connection with appeals" presupposed that a right of appeal existed. Moses LJ applied the strict approach mandated by the Spath Holme case referred to by Lord Neuberger in Public Law Project (see [40] above). He observed at [22] that:

"…a provision which revokes or removes a right of appeal does not seem to me properly to be described as a provision about the circumstances in which an appeal may be made… A provision in relation to the circumstances in which an appeal may be made pre-supposes the existence of a right of appeal not its abolition."

Moses LJ supported his conclusion by contrasting the reference in s.124(1)(a) to "for and in connection with" reviews with the omission of the word "for" in s.124(1)(b) (at [23]) and explained at [26] that the need for clear words precluded a benevolent construction.

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[71] The facts of Mr Arrbab's case are an unfortunate illustration of the reality that only a right of recourse to an independent tribunal may provide effective protection against failures of administration, including a failure to recognise that time ought to be extended. This reinforces the need for a clear indication that Parliament intended to remove that right, leaving only the possibility of a judicial review of HMRC's decision-making. Section 124 FA 2008 does not provide such an indication." (HMRC v. Arrbab [2024] EWCA Civ 16, Falk, Baker, Snowden LJJ)

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- Power to make provision in connection with reviews and appeals did not permit mandatory review procedure

Remedy where part of delegated legislation exceeded power

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Remedy where part of delegated legislation exceeded power

- Partial validity by severance where valid text is unaffected by and independent of the invalid

 

"[75] Both parties made further written submissions about whether there was any alternative to treating s.38(1A) as wholly invalid, by some form of severance of its text. In DPP v Hutchinson [1990] 2 AC 783, 804 Lord Bridge explained that a court has no power to modify or adapt an invalid provision to bring it within the law-maker's power, and described the power to sever in the following terms:

"What is involved is in truth a double test. I shall refer to the two aspects of the test as textual severability and substantial severability. A legislative instrument is textually severable if a clause, a sentence, a phrase or a single word may be disregarded, as exceeding the law-maker's power, and what remains of the text is still grammatical and coherent. A legislative instrument is substantially severable if the substance of what remains after severance is essentially unchanged in its legislative purpose, operation and effect."

After reviewing the authorities Lord Bridge then said this at p.811:

"The test of textual severability has the great merit of simplicity and certainty. When it is satisfied the court can readily see whether the omission from the legislative text of so much as exceeds the law-maker's power leaves in place a valid text which is capable of operating and was evidently intended to operate independently of the invalid text. But I have reached the conclusion, though not without hesitation, that a rigid insistence that the test of textual severability must always be satisfied if a provision is to be upheld and enforced as partially valid will in some cases, of which Dunkley v. Evans and Daymond v. Plymouth City Council are good examples, have the unreasonable consequence of defeating subordinate legislation of which the substantial purpose and effect was clearly within the law-maker's power when, by some oversight or misapprehension of the scope of that power, the text, as written, had a range of application which exceeds that scope. It is important, however, that in all cases an appropriate test of substantial severability should be applied. When textual severance is possible, the test of substantial severability will be satisfied when the valid text is unaffected by, and independent of, the invalid. The law which the court may then uphold and enforce is the very law which the legislator has enacted, not a different law. But when the court must modify the text in order to achieve severance, this can only be done when the court is satisfied that it is effecting no change in the substantial purpose and effect of the impugned provision."

At p.813 Lord Bridge approved the approach taken by Australian authorities of asking, when textual severance is impossible, whether the provision:

"… with the invalid portions omitted would be substantially a different law as to the subject matter dealt with by what remains from what it would be with the omitted portions forming part of it…"" (HMRC v. Arrbab [2024] EWCA Civ 16, Falk, Baker, Snowden LJJ)

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- Partial validity by severance where valid text is unaffected by and independent of the invalid

- Partial validity by modification only where no change to substantial purpose and effect of impugned provision

 

"I think the proper test to be applied when textual severance is impossible, following in this respect the Australian authorities, is to abjure speculation as to what the maker of the law might have done if he had applied his mind to the relevant limitation on his powers and to ask whether the legislative instrument

"with the invalid portions omitted would be substantially a different law as to the subject matter dealt with by what remains from what it would be with the omitted portions forming part of it" (Rex v. Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow & Co., 11 C.L.R. 1, 27).

In applying this test the purpose of the legislation can only be inferred from the text as applied to the factual situation to which its provisions relate. Considering the Greenham byelaws as a whole it is clear that the absolute prohibition which they impose upon all unauthorised access to the protected area is no less than is required to maintain the security of an establishment operated as a military airbase and wholly enclosed by a perimeter fence. Byelaws drawn in such a way as to permit free access to all parts of the base to persons exercising rights of common and their animals would be byelaws of a totally different character. They might serve some different legislative purpose in a different factual situation, as do some other byelaws to which our attention has been drawn relating to areas used as military exercise grounds or as military firing ranges. But they would be quite incapable of serving the legislative purpose which the Greenham byelaws, as drawn, are intended to serve." (DPP v Hutchinson [1990] 2 AC 783)

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"While I am satisfied that the challenge to the invalidity of s.38(1A) has no impact on the validity of the review mechanism contained in ss.21A and 21B, I do not consider that any form of severance can be applied within s.38(1A) in a way that could satisfy this test. Section 38(1A) can neither be textually severed, nor can it be modified without changing its "substantial purpose and effect". The sole purpose of s.38(1A) is to ensure that a review must be carried out under s.21A before an appeal can be brought. But that is the very thing that, when read with HMRC's role as arbiter of time limits under ss.21A and 21B, falls outside the enabling power." (HMRC v. Arrbab [2024] EWCA Civ 16, Falk, Baker, Snowden LJJ)

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- Partial validity by modification only where no change to substantial purpose and effect of impugned provision
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