Chapter Updates

Chapter 2: Delegated legislation

Unsuccessful ultra vires challenge to an Order in Council

In Christian and Others v The Queen (2006), the Privy Council had to determine whether a piece of delegated legislation exceeded powers set out in the original enabling Act. The case has an interesting background, originating from charges of rape and indecent assault against a group of men on Pitcairn Island, which is located in the Pacific Ocean to the north-east of New Zealand. The island is famous because the first settlers were a group of British sailors who deserted a ship, ‘The Bounty’, the full story of which has subsequently been told in numerous films such as ‘Mutiny on the Bounty’.

The accused men sought to challenge the validity of the charges against them, brought under the Sexual Offences Act 1956, by arguing that Pitcairn Island was not a British settlement and therefore British law did not apply to them. The Privy Council had therefore to investigate whether the British Settlements Act 1887 and the subsequent delegated legislation made under that Act, including the Pacific Order in Council 1893 and, most recently, the Pitcairn Order 1970, did give the island the status of a British possession.

The Privy Council held that Pitcairn Island was a British possession and therefore dismissed the appeals by the men. The Order in Council in 1893 was created specifically for the purposes of creating a system of British governance over British settlements in the Pacific and executive statements from as early as 1898 made clear that Pitcairn was one such settlement to which the Order applied. The 1970 Order led to a legislative statement by the Governor of Pitcairn that English law applied to the island. As Lord Hoffmann pointed out, ‘For over a hundred years Pitcairn had been administered by the Crown as a British possession and whatever its history or inclination of its people might have been, it was unthinkable that the Judicial Committee of Her Majesty’s Privy Council would not accept an executive statement affirming it to be part of the territory of the Crown.’

Delegated legislation in the news

If you wish to impress the examiner with a recent example of delegated legislation which is predicted by the media to have far-reaching consequences in society, then consider the Employment Equality (Age) Regulations 2006, which implements the equal treatment requirements of EC Directive 2000/78. This legislation seeks to protect employees from direct and indirect discrimination on the grounds of age in the workplace. It will impact upon recruitment and selection, appraisal, promotion, training and dismissal procedures within the workplace. You can access the Regulations via www.opsi.gov.uk/si/si2006/20061031.htm. The legislation complements other recent Regulations arising from the Directive on sexual orientation and religion or belief (see textbook. ‘it’s a fact! 2.2’ at p39).