Judicial Controls over DL Flashcards
judicial controls [paragraph 1]
The Courts have only one way of controlling DL which is through Judicial Review. Anyone affected by the DL can challenge the legality of it in the High Court. They will then look at it and decide whether it is unlawful or not and if it is unlawful, it is declared ‘ultra vires’ (meaning it’s gone beyond the power given in the Parent Act) and the law is voided.
procedural ultra vires [paragraph 2]
There are three reasons the courts can declare DL ‘ultra vires’. The first is that it is Procedural Ultra Vires. The High Court will declare DL this ‘if the body/person using the delegated powers […] did not follow the procedure set out under the Parent Act itself’. If the Parent Act sets out steps to be followed, they must always be followed.
An example of this was in the Aylesbury Mushrooms Case in which the Minister for Agriculture tried to establish a training board for Mushroom Growers and failed to consult the Mushroom Growers Association (which was required). The court held the training board was procedural ultra vires.
substantive ultra vires [paragraph 3]
Another, is Substantive Ultra Vires. The Courts will declare DL this ‘if the person/body using the powers has gone beyond the power initially given to them in the Parent Act’.
An example of this is DPP v Hutchinson, in which the RAF created by-laws to ban people walking through public commons near a military base. However the Parent Act only allowed them to restrict access to the area directly around the base. The Court declared the by-laws substantive ultra vires.
wednesbury unreasonableness [paragraph 4]
The final is Wednesbury Unreasonableness. This is when the DL is said to create an unreasonable result. Here, the Court is more concerned about the outcome of the DL and whether it unfairly targets one group of society. The test was set out in the case of Associated Picture House v Wednesbury Corporation in which it was said that LD would be unreasonable if “[the body using the delegated powers] behaved in a way that no reasonable public body would behave”.
In the Wednesbury Case, a Local Council banned under-15s going to the cinema on Sundays which the court declared to be unreasonable.
