Controls-By the Courts

Question 1

What can delegated legislation be challenged in the courts by?

Answer 1

on the grounds that it is ultra vires

Question 2

What is ultra vires?

Answer 2

when the delegated legislation goes beyond the powers that Parliament granted in the enabling Act

Question 3

What can the questioning of the validity of delegated legislation may be made through ? (3)

Answer 3

through the judicial review procedure or it may arise as a civil claim between two parties or on appeal

Question 4

What happens to any delegated legislation which is ruled to be ultra vires?

Answer 4

it is void and not effective

Question 5

What case illustrates delegated legislation which has been ruled ultra vires ?

Answer 5

R v Home Secretary ex parte Fire Brigades Union (1995)

RvHS exparte FBU

Question 6

What changes were in involved in the case R v Home Secretary ex part Fire Brigades Union (1995) ?

Answer 6

changes to the Criminal Injuries Compensation scheme

Question 7

In the case R v Home Secretary ex parte Fire Brigades Union 1995, what was wrong ?

Answer 7

the changes to the Criminal Injuries Compensation scheme was held to have gone beyond the power given to the Home Secretary I’m the Criminal Justice Act 1998

Question 8

In the case R v Home Secretary ex parte Fire Brigades Union 1995 what was the enabling Act ?

Answer 8

the Criminal Justice Act 1998

Question 9

Unless the enabling Act expressly allows it , what will the court presume there is not power to do ? (3)

Answer 9

• make unreasonable regulations
• levy taxes
• allow sub-delegation

Question 10

What is the case which is an example of when a local council has made unreasonable regulations which is not expressly allowed in the enabling Act ?

Answer 10

in Strickland v Hayes Borough Council 1896

Question 11

What type of delegated legislation was involved in Strickland v Hayes Borough Council 1896?

Answer 11

Bylaw

Question 12

What was the bylaw in the case Strickland V Hayes Borough Council 1896 which is an example of when a local council has made an unreasonable regulation which is not expressly allowed in the enabling Act?

Answer 12

the bylaw prohibited the sinning or reciting of any obscene song or ballad and the use of obscene language

Question 13

What was decided in the case of Strickland V Hayes Borough Council 1896 and why?

Answer 13

it was decided the bylaw was unreasonable and so ultra vires because it was too widely drawn in that it covered acts done in private as well as those in public

Question 14

What can the courts do if they find that the correct procedure has not been followed for delegated legislation?

Answer 14

they can find it ultra vires

Question 15

What is a case which illustrates when the courts have found delegated legislation ultra vires as the correct procedure was not followed?

Answer 15

Aylesbury Mushroom case 1972

Question 16

What happened in the Aylesbury Mushroom case 1972 ?

Answer 16

the Minister of Labour had to consult any organisation which appeared representative of members in the activity concerned however he failed to consult the Mushroom Growers’ Association which represented 85% of all mushroom growers, though it was valid in relation to others affected by the order such as farmers as the NFU was consulted

Question 17

What did a High Court judge rule in the case of
R v Secretary of State for Education and Employment, ex parte National Union of Teachers 2000

(R v SSEE, ex parte, NUT 2000 )

Answer 17

the judge ruled that a statutory instrument setting conditions for appraisal and access to high rates of pay for teachers was beyond the powers given in the Education Act 1996

Question 18

What was the enabling Act in R v SSEE, ex parte, NUT 2000?

Answer 18

Education Act 1996

Question 19

What were the 2 things in which the judge ruled were beyond the powers given by the Education Act 1996 in R v SSEE, ex parte NUT 2000?

Answer 19

the statutory instrument setting out

• conditions for appraisal
• access to high rates of pay

Question 20

What is the main advantage of judicial review as a control of delegated legislation ?

Answer 20

anyone affected by the delegated legislation can ask for a judicial review

Question 21

What is the disadvantage of judicial review as a control of delegated legislation?

Answer 21

it is expensive to take court proceedings

Question 22

What is an advantage of the doctrine of ultra vires as a control of delegated legislation?

Answer 22

court can declare delegated legislation void

Question 23

What is a disadvantage of the doctrine of ultra vires as a control of delegated legislation in terms of its use? (2)

Answer 23

can only be used

• if correct procedure has not been followed
• if the delegated legislation goes beyond the power given by the enabling Act