Delegated legislation - Judicial Review of delegated legislation
Control by the courts by Judicial Review.
Ultra vires and reasonableness, is described here
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...
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