2A.2.2 Controls on delegated legislation Flashcards
Two types of controls on delegated legislation
- Judicial
- Parliamentary
Judicial controls on delegated legislation
The courts control delegated legislation through a process known as judicial review.
An individual can apply to the High Court to decide if delegated legislation is valid or not so long as they are affected by it.
Judges then review the delegated legislation and decide whether or not its lawful.
What are judicial reviews?
A piece of delegated legislation can be challenged in court by the procedure of judicial review.
It will be heard in the Administrative Court (in the KBD of the High Court), usually by two judges.
The person making the challenge must have sufficient standing or interest in the case and is therefore directly affected by the legislation.
Grounds for a judicial review
Delegated legislation can be challenged on the grounds that it is:
- ultra vires.
- unreasonable.
Ultra vires
Goes beyond the powers granted by parliament in the parent act.
What happens if the delegated legislation is found to be ultra vires?
It is declared void and ineffective.
What are the two types of ultra vires?
- Procedural
- Substantive
Substantive ultra vires
When the delegated legislation goes beyond the powers granted in the enabling act.
Cases:
- Attorney General v Fulham Corporation
- R v Secretary of State for Health ex parte Pfizer
Attorney General v Fulham Corporation
The corporation was given the power to build public washing facilities. It built private laundry. This was ultra vires as it went beyond their powers.
R v Secretary of State for Health ex parte Pfizer
It was held a circular from the Secretary of State for Health advising doctors not to prescribe viagra went beyond the powers given in the enabling act.
Procedural ultra vires
When the courts declare that the procedures set out in the procedures set out in the enabling act for creating delegated legislation have not been followed.
Case:
- Aylesbury Mushrooms case
Aylesbury Mushrooms case
The minister was required to consult any organisations concerned with mushroom growing.
He did not consult with the Mushroom Growers Association, which represented 85% of mushroom growers so his order establishing a training board was declared invalid.
What is the “wednesbury unreasonableness”?
Where the courts declare invalid any delegated legislation that is unreasonable.
Case:
* Associated Picture House v Wednesbury Corporation
Case for Wednesbury unreasonableness
Associated Picture House v Wednesbury Corporation
Associated Picture House v Wednesbury Corporation
The court decided that the local council had behaved unreasonably in banning children from local cinemas on Sundays.
The term “Wednesbury unreasonable” is “so unreasonable that no reasonable local authority could have decided that way”.