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[Delegated legislation - Judicial Review of delegated legislation]
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[Home][Index - Lecture notes][Index - Sources of Law][Legislation - Acts of Parliament and delegated legislation][Delegated legislation - Judicial Review of delegated legislation]

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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.

 

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