|
Control by the courts
by Judicial Review. |
|
Judicial review |
Ultra vires and reasonableness,
is described here |
|
Judicial Review |
Judicial Review is the
process by which delegated legislation may be challenged, it is conducted
in the Administrative
court.
Judicial review of criminal cases is heard
in a Divisional Court (with 2 or more judges). |
|
Judicial Review of SI’s |
Courts can question whether a Minister, when issuing an SI, is using a
power he has actually been given in the parent Act, whereas
they cannot question the validity of the Act itself. |
|
Can codes of practice or guidelines, which have no
legal status, be reviewed? |
They are often crucial
to the administration of justice for example, the Police and Criminal Act
Codes of Practice. The position is uncertain; the answer is 'probably'.
Judicial
Review can be used as a defence to an action, or by direct challenge,
simply to test the legislation.
Statutory instruments
are
ultra vires (in excess of their power) (substantively if the
instrument exceeds the powers or area authorised) or (procedurally if
incorrectly passed).
|
|
Substantive
ultra vires |
SIs are substantively
ultra vires if they impose a tax, interfere with the basic rights
of subject e.g. Freedom of speech, or allow sub-delegation of powers,
unless expressly authorised by parent act.
|
|
Procedural
ultra vires |
Instruments will be
held to be ultra vires if a mandatory procedural requirement has
not been followed, but will not be if the procedure is only directory.
Consultation is
obligatory.
|
|
Agricultural Training Board v Aylesbury Mushrooms Ltd (1972)
|
Held:
Providing the statute stated that there must be consultation - there is no
requirement otherwise. However, there is no requirement to do any more
than ask for the consulted parties' views - they can be ignored. |
|
Bailey v Williamson (1873) |
Held:
The duty to lay before Parliament is directory. |
|
R v Sheer Metalcraft Ltd (1954) |
Held:
The duty to publish is directory. |
|
R v Secretary of State for Health, ex parte U. S. Tobacco International
Inc (1992) |
A ban on oral snuff was
held illegal, as during the consultation process the company was not given
the scientific grounds on which the ban was made.
Held:
unfair consultation process can lead to the instrument being quashed. |
|
Illegality
Judicial Review for Illegality (ultra vires) |
|
Customs and Excise v Cure & Deeley (1962) |
1940 Finance Act gave
Customs and Excise power to make any law they wanted. This was wrong as it
gave a government department more power than Parliament.
|
|
Or
for Procedural impropriety
E.g. Not consulting
properly, or laying requirements, or publicity requirements |
|
Lee v SS for Education (1967) |
Reasonable notice" of
change not given to Enfield Grammar School (given 5 days).
|
|
R v SS (ex parte US Tobacco)(1992) |
‘Skull bandits’ given
public money to build factory then Health Authority banned product.
|
|
Or
Reasonableness
‘Wednesbury
Unreasonableness‘ |
|
Parker v Bournemouth Corp (1970) |
Hawking ban unless
agreement - unlawful because agreement viz. Contract with LA may be
unreasonable.
|
|
Or
Lack of certainty |
|
Nash v Finlay (1907) |
"Not to annoy
passengers in street", not specific enough.
|
|
Or
as a defence to a charge |
|
DPP v Hutchinson (1990) |
Greenham Common women
defended charges on the grounds that bye-laws should not have been made on
common land.
|
|
R v Wood (1855) |
Removal of dust, ashes,
and rubbish - could not include snow.
|
