Controls (Q2) Judicial Controls on DL

Question 1

Intro

Answer 1

• Delegated legislation can be challenged in the courts on the basis that it is ultra vires which means it goes beyond the powers granted by Parliament in the parent act.
• The challenge can be through civil action (Boddington V BTP) or Judicial Review.
• Judicial Reviews are heard in the QBD of the High Court. However, the hearing can only take place after the delegated legislation has been made and if successful, it will be declared void and no longer effective. For instance, in R v Home Sec, ex parte Fire Brigades Union, changes made by the Home Secretary to the Criminal Injuries Compensation Scheme were ruled to be beyond the powers given to him in the Criminal Justice Act 1988.

Question 2

Types of ultra vires

-Procedural ultra vires

Answer 2

Delegated legislation can be declared void if there has been procedural ultra vires, this is if the parent act sets out a specific procedure that must be followed in making the delegated legislation but it has not been followed then this will be Procedural ultra vires and the delegated legislation will be declared void.

Question 3

Types of ultra vires

• Procedural ultra vires
• Example

Answer 3

This was seen in Aylesbury Mushrooms where the parent act stated the Minister had to follow the procedure of consulting the Mushroom Growers Association. As he failed to do this, the delegated legislation was invalid.

Question 4

Types of ultra vires

-Substantive ultra vires

Answer 4

If the parent act sets out the framework of the delegated legislation and if it goes beyond what Parliament intended then this will be Substantive ultra vires and the delegated legislation will be declared void. In AG v Fulham Corporation, the Council were given power under the Bath and Wash Houses Act to provide bathing facilities for local residents. They decided to also provide laundry facilities to wash people’s clothes. The laundry service was judged to be Substantive ultra vires as it went beyond what parliament intended in the parent act.

Question 5

DL will also be ultra vires if attempts to do the following..

Answer 5

1. Make unreasonable regulations.
   Strictland v Hayes BC – a bylaw prohibiting singing or reciting obscene language was held to be unreasonable and ultra vires. It was too wide as it covered both private and public acts.
2. imposes taxes/charges.
3. Sub-delegate.