Controls by the courts on Delegated Legislation

What are the different types of control by the courts?

1. Judicial Review

2. Procedural ultra vires

3. Substantive ultra vires

4. ‘wednesbury unreasonableness’

What ice judicial review?

• DL can be challenged in court through judicial review

  • in KBD by 2 judges

• person making challenge must have sufficient standing or interest in case

• challenge made on the ground that legislation is ultra vires

  • means that it goes beyond powers in enabling act

what does procedural ultra vires mean?

• correct procedure set out by enabling Act not followed

  • as in Aylesbury Mushrooms case where the Minister didn’t consult the mushroom growers association

What does substantive ultra vires mean?

• rule-making body has no substantive power under empowering Act to make rules in question

• eg acting beyond what is authorised, as result any rule will be ultra vires and void

• can be seen in R v Home Secretary Ex party Fire Brigades Union

  • changes made to Criminal Injuries compensation scheme made by Home Secretary went beyond powers given to them in enabling Act

What is ‘wednesbury unreasonableness’?

• decision made by delegated body so unreasonable that no reasonable body or authority would ever consider imposing it

• if test is met then decision will be ultra vires and void

• set out in Associated Picture Houses v Wednesbury Corporation

• seen in R v Swindon NHS Trust

How effective are judicial controls? (12 marker)

• anyone can challenge piece of delegated legislation is a good thing

  • however there are various limitations on judicial controls

• action dependent on a case being brought before a court

• person making challenge in judicial review must have interest in matter or be affected by it

• challenge usually made against gov or public body which has funds to defend legislation or decision made

• action has to be made within 3 months of decision or there won’t be state funding or legal aid available for the challenge

• person or body able to take action will be limited as not much time to appeal for crowdfunding

• court doesn't have power to strike down piece of delegated legislation due to parliamentary sovereignty

  • can only check that a piece of legislation has been made in accordance with the requirements of parent act