Report comment

The underlying point here is surely that, in a Parliamentary democracy, it is the elected Parliament that is the supreme law maker. However, it is only supreme when it enacts primary legislation through the normal legislative process. Secondary legislation, whether made under the negative or the affirmative resolution process (or, indeed, where the SI is merely laid before Parliament), is not a legislative 'act' of Parliament, as such. The authority to make any statutory instrument (except perhaps Orders in Council made under the Royal Prerogative) must derive from some primary legislation and, whether or not there has been any affirmative resolution in Parliament, can only be legitimately made when the person making it has the necessary powers (vires), as granted by the primary legislation. If a purported SI has been made outside the extent of the powers granted by Parliament in the relevant primary legislation (so that it is ultra vires), then it is the proper role of the court to strike down the SI as of no effect. In doing so, the court upholds the supremacy of Parliament and the primary legislation that is the only authentic expression of the will of Parliament. There is nothing particularly remarkable about this process, as the case law is replete with instances where the court has considered the effectiveness of SIs and either struck them down as outside the powers granted by primary legislation or upheld them as within those powers. It is one of the main ways in which the Government is held to account in the exercise of its administrative and executive functions.