Delegated legislation is controlled by parliament itself and by judges. Explain judicial controls on delegated legislation.

SIs are a form of legislation, often drafted by the legal office of the Government Department concerned, allowing the provisions of an Act of Parliament to be brought into force or altered without Parliament passing a new Act.

Grade: A-C | £0.00.

This question is about the controls exercised by the courts over delegated legislation. Delegated legislation can be challenged in the courts on the ground that it is ultra vires, that is to say it goes beyond the powers that were granted by Parliament in the original enabling Act. The challenge can be made by using the judicial review procedure or if the two parties make a civil claim.

Substantive Ultra Vires - If there is a consideration that the law may have been created unreasonably or illegally the courts can step in to prevent or remedy an abuse of power by public authorities.

Procedural Ultra Vires – If there is a consideration that the correct procedure was not followed when the law was created the courts can again step in and may hold that the delegated legislation is ultra vires.

Delegated legislation, or secondary legislation, is quite simply legislation which is made by a body other than Parliament but with the permission of Parliament. The majority of delegated legislation is in the form of statutory instruments but it can also include Rules or Codes of Practice. Delegated legislation can relate to technical changes in an Act, such as amending the level of fees to be paid for a public service or can be used to add more detail to an Act.

 

Judicial review or judicial control is exercised by the Queen's Bench Divisional Court which exercises supervisory powers over the decisions of government ministers. This function demonstrates the importance of the independence of the judiciary, as government ministers are an arm of the state and it is important that individuals feel that their dispute has been fairly and impartially dealt with. Such calls for judicial review have probably grown in importance in recent years and there will no doubt be numerous examples of instances where the judiciary have ruled against a government minister.

 

However this does not alter the fact that such claims are brought by individuals and therefore such controls cannot be said to be uniform in the sense that it enables judges to review secondary legislation as part of their role. On the contrary they only have scope to review legislation which is brought to their attention by proceedings of judicial review which are special to that dispute or claim.

 

There is one limitation of judicial review in that such proceedings must be brought before the Divisional Court in order for them to review any delegated legislation. This is dependent upon an individual being able to finance such a claim.

 

In addition such claims may be affected by a lack of awareness or lack of knowledge due to the sheer volume of delegated legislation passed each year. In the circumstances the fact that a claim has not been brought before the courts is no indicator that such secondary legislation is without defect but more to do with the difficulties of successfully financing and bringing such a claim to court.

 

In the event that the divisional court finds that delegated legislation is wanting for being ultra vires (exceeding its powers) the court can make an order accordingly and the effect is that such legislation is void and of no effect. Delegated legislation can also be declared ultra vires for the reason that the correct procedures were not followed (procedural ultra vires).

An example is the case of Aylesbury Mushrooms (1972) which was declared procedurally ultra vires as the relevant minister had not followed the correct procedures concerning consultations.

 

Whilst this is clearly effective in one way the effect of such an order is to make the legislation completely ineffective. The court cannot make an order substituting or second guessing what the minister should have done. This means that new legislation will have to be made following correct procedures and complying with any parameters set by the enabling Act. To this extent this causes ministers and Parliament more work whereas if the problem had been picked up during the resolution stage this may have been more effective in terms of time. This was illustrated by the case of R v Home Secretary, ex parte Fire Brigade union (1995) when it was decided that changes to the criminal injuries compensation scheme by the Home Secretary exceeded the powers granted under the Criminal Justice Act 1988 and were declared substantive ultra vires.

 

On some occasions the approach taken as part of the judicial review questions whether the decision which is being challenged is reasonable. If the decision is found to be unreasonable, bearing in mind the material facts upon which the decision ought to have been based, the decision is declared ultra vires on the basis that no reasonable person could have made such a decision. The approach is taken following the finding of unreasonableness ultra vires in the case of Associated Provincial Picture Houses v Wednesbury Corporation (1947) in which the former town council banned a cinema from admitting children on Sundays.  The landmark case ruled that the court could not overrule a decision of a public body just because the court disagreed with the decision. The court went on to set down the principles that may lead to a decision being set aside. The court indicated that it needed to be shown that the authority took into account factors which were not relevant to the matter being dealt with or failed to take proper account of matters which were relevant or, that the decision was so unreasonable that no reasonable body would have come to such a decision. The approach has become known as Wednesbury unreasonableness and has given the town of Wednesbury a rather strange claim to fame.

 

Statutory instruments can also be declared void if they conflict with European Union legislation.

 

Finally it needs to be pointed out that whilst the parameters set by the enabling Act form a limitation or control by Parliament, in that Parliament passed the original Act, the modern trend is to draw up broad enabling powers. The effect of such methods is to give ministers in turn wide powers but also to make it more difficult to successfully claim under judicial review proceedings on the basis that the secondary legislation was not permitted under the enabling Act or that the minister has exceeded their powers (ultra vires). Are such wide powers there as a result of the will of Parliament or are they more to do with the skills of Parliamentary draughtsmen?

 

 

(Word count 1069)



Delegated Legislation: Substantive ultra vires - SlideShare

Delegated Legislation: Procedural Ultra Vires - SlideShare

 

 

 

This essay looks at Judicial review and the manner in which it is exercised by the courts.  Judicial review has limitations and these are examined and the potential for ultra vires is explored.


The work makes reference to the following cases:

  • Aylesbury Mushrooms (1972);
  • R v Secretary of State for Home Office ex parte Fire Brigade Union (1995);
  • Associated Provincial Picture Houses Ltd v Wednesbury Corp (1947).

 

Links have been provided to allow further research.

 

(Word Count 945)

 

 

 

 

Related Items

The items below list this Essay as being related in some way.

Tags

There are no related tags.

Amazon's recommended Books

RSS Feeds