control of del leg by the courts

Question 1

when can del leg be challenged in courts?

Answer 1

• unlike a statute,
• del leg can be challenged in court by judicial review on the grounds it is ultra vires (goes beyond the powers granted by Parliament),

Question 2

how can an individual who has a personal interest in the del leg apply to the courts?

Answer 2

• can apply to the courts under the judicial review procedure,
• if the del leg is considered ultra vires, it is declared void,

Question 3

judicial review

Answer 3

• the High Court is being asked to consider whether the del leg is made ‘beyond the powers’ or ‘exceeding the authority of’, the courts can declare it ultra vires and therefore void,
• two types of ultra vires:
  . procedural,
  . substantive,

Question 4

what won’t the courts allow, unless allowed by the enabling act?

Answer 4

• levying a tax,
• sub-delegation,
• conflict with European Union Law,
• making unreasonable regulations,

Question 5

substantive ultra vires

Answer 5

• irrationally,
• this is where the del leg goes beyond the powers granted by the enabling act,

Question 6

R v Home Secretary, ex parte Fire Brigade Union (1995)

Answer 6

• changes introduced by the Home Secretary were held to be ‘substantive ultra vires’ because he had altered the Criminal Injuries Compensation scheme, although he hadn’t been given that power,

Question 7

Customs and Excise Commissioners V Cure and Deeley Ltd

Answer 7

• Parent Act gave power to commissioners to make laws concerning tax collection,
• made a law deciding the amount of tax due when a tax return was submitted late,
• ultra vires because it amounted to a tax,
• commissioners could make rules but not impose a tax,

Question 8

procedural ultra vires

Answer 8

• (unfairness) when the correct process or procedure hasn’t been followed,

Question 9

Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushroom Ltd (1972)

Answer 9

• the MP was instructed to consult interested personalities, but failed to consult the Mushroom Growers Association,
• therefore ultra vires (procedural),

Question 10

R v Secretary of State for Education ex parte National Union of Teachers

Answer 10

• SI setting conditions for appraisal and access to higher rates of pay for teachers was declared ultra vires and void,
• procedure used was unfair, only 4 days were given for consultation,
• procedures set out in the Education Act 1966 weren’t correctly followed,

Question 11

unreasonableness

Answer 11

• this form of control was established by the courts in the Associated Provincial Pictures house v Wednesbury corporation (1948) and is commonly known as ‘Wednesbury unreasonableness’,

Question 12

Associated Provincial Picture Houses v Wednesbury Corporation

Answer 12

• local cinema company granted permission by council to open on Sundays,
• However, council imposed condition under 15s shouldn’t be allowed in on Sundays,
• cinema company complained that was ‘unreasonable’ and the council wasn’t legally entitled to impose it,
• Court of Appeal disagreed and ruled it was reasonable,
• court stated in certain circumstances law courts could override decisions made by officials if they had been made in an unreasonable or irrational way,

Question 13

Strickland v Hayes

Answer 13

• A bylaw prohibiting the singing or reciting of any obscene song or ballad and use of obscene language was held to be unreasonable and so ultra vires because it was to widely drawn in that it covered acts done in private as well as public,

Question 14

Rogers v Swindon NHS trust

Answer 14

• when a woman with early breast cancer was prescribed Herceptin by her doctor,
• NHS trust refused to provide this non-approved drug because her case was not exceptional,
• Court of Appeal said this policy was irrational and unreasonable and therefore unlawful,
• the trust was unable to put forward any clear reasons for providing the drug for some patients and not for others,

Question 15

Effectiveness of Judicial Control

Answer 15

• Although there are a range of controls, they are limited,
• Courts are dependant on people bringing claims to them,
• rare for people to question the law,
• requires legal knowledge, skill and finances to bring a case to court,

Question 16

Effectiveness of Control

Answer 16

• even if a case is brought before a Judge, they cannot amend the law, only declare it,
• when a case is brought before the courts the Judge is able to ensure the rules have been followed,
• upholds Parliamentary Supremacy as the rules are made by the democratically elected body,