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give the citizen the benefit of the
doubt, as it's not on to deprive
anyone of their rights because
somebody got the procedures
wrong. For example, there was a
gentleman who escaped a parking
ticket because the yellow lines he
was parked on were 2 inches thinner
than the size specified. In this way,
Parliament is supposed to keep a
tight control on any authority that
may be created by Act of Parliament,
because the end result could be that
Civil Servants make unauthorised
laws, and they aren't elected.
In Canada, the Aeronautics Act
confers upon the Governor-in
Council (i.e. the Cabinet) the
authority to make regulations which
are then part of the Act, i.e. CARs.
The Governor-in-Council in turn
makes regulations authorising the
Minister of Transport. Enforcement
provisions thus become part of the
Act. As long as the Act and
Regulations are not found
unconstitutional, as an Act of
Parliament they are valid and
enforceable. Ordinary rules of legal
procedure apply and a person
aggrieved by a charge has the right to
seek legal representation to overturn
the charge (having said that, be wary
of the enforcement division’s
tendency to impose sanctions
without benefit of a hearing).
Anyway, in UK, to be enforceable,
subordinate legislation must also be
given judicial notice, so it can be
admissible evidence in a Court of
Law. It's worth noting that the Civil
Aviation Act 1982 does not appear
to grant this to its subordinate
legislation, which has the effect of
shifting the burden of proof of being
intra vires (or within its terms of
reference) to the maker of the law,
rather than to you to prove the
opposite, that is, that it may be ultra
vires. In the absence of provisions
requiring judicial notice to be taken
of it, subordinate legislation must be
pleaded (and proved by) the party
seeking to rely on it, but this virtually
never happens.
Although subordinate legislation
need not necessarily be brought to
Parliament’s notice (because there's
so much of it), the Act behind it
usually requires submission to
Affirmative or Negative Resolution
procedure. The difference is simple;
where affirmative procedure is used,
SIs do not become law unless
actually approved by Parliament—in
other words, a vote of approval is
specifically given. Negative
procedure means they are law unless
rejected by Parliament within 40
days. In the case of the Civil
Aviation Act 1982, as to whether a
particular procedure is used or not
depends on Schedule 13, which
expressly provides that negative
resolution procedure is to be used,
except for noise certification, which
uses the affirmative.
The process is overseen by a
Committee, which unfortunately
only has jurisdiction while the
Instrument lays before Parliament. It
meets every 14 days, so it is possible,
with judicious timing, for
Instruments to get the minimum
time for scrutiny, as there is no prepublicity
– it just arrives on the table,
so to speak, at the same time as in
274 Operational Flying
the shops and both Houses. As there
are not many members on the
committee, and they may need to
look at over 100 at a sitting, for all
practical purposes Instruments are
not read.
There is no general rule as to when
an Instrument may be unenforceable
because the wrong procedure was
used, because each case turns on its
own circumstances. A penal statute
(that is, one which involves penalties
for its contravention), however,
must be strictly observed, a classic
case being that of Ronald Biggs, who
could not be extradited from
Trinidad because the extradition
treaty between Trinidad and the UK
had not been laid before the
Trinidad Parliament. Since Civil
Aviation subordinate legislation
purports to be enforceable by
criminal proceedings (that is, you get
punished if you break it), it occupies
the same position. In a remedial case,
though, some latitude would be
allowed, such as where a person was
being refused a licence which would
enable a living to be earnt because
the law had not gone through the
proper procedure—righting a wrong,
in other words.
Interpretation
Expressions in subordinate
legislation have the same meanings
as those in the Act behind it, unless
there is a clear statement otherwise,
so you can’t use “ordinary
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