Controls by the Courts (OCR A-Level Law): Revision Notes
Controls by the Courts
When delegated legislation is created by secondary bodies (such as ministers, local authorities, or other organizations), the courts have the power to review whether these laws have been made properly and within the legal limits set by Parliament. This judicial oversight is essential to ensure that delegated legislation does not exceed the authority granted by the parent Act.
The power of courts to review delegated legislation represents a crucial constitutional safeguard, ensuring that secondary bodies remain accountable to the law and do not exceed their parliamentary mandate.
Judicial review
The courts exercise control over delegated legislation through a process called judicial review. When an individual or organization is affected by a piece of delegated legislation and believes it has been made unlawfully, they can apply to the Queen's Bench Division of the High Court for a judicial review.
If the court finds that the delegated legislation has been made improperly, it can declare the legislation to be ultra vires and therefore void (meaning it has no legal effect and cannot be enforced).
Understanding ultra vires
Ultra vires is a Latin term meaning "beyond the powers". It refers to situations where a secondary body has exceeded the legal authority given to it by the parent Act when making delegated legislation.
There are two main types of ultra vires that the courts will examine during judicial review: procedural ultra vires and substantive ultra vires. Understanding the distinction between these two types is essential for analyzing whether delegated legislation is lawful.
Procedural ultra vires
Procedural ultra vires occurs when the secondary body has failed to follow the correct procedures set out in the parent Act when creating the delegated legislation. Even if the content of the legislation itself is acceptable, failure to follow the proper procedure will make it invalid.
Case Example: Agricultural Training Board v Aylesbury Mushrooms Ltd (1972)
Facts: The Horticultural Society was required to consult all interested parties before introducing new regulations under the parent Act. However, they failed to consult mushroom growers who would be affected by the regulations.
Issue: Had the proper consultation procedure been followed?
Decision: The court found this was procedural ultra vires because the proper consultation procedure had not been followed, making the regulations void.
Legal principle: When a parent Act specifies procedural requirements (such as consultation), these must be strictly followed. Failure to do so renders the delegated legislation invalid, regardless of its content.
Substantive ultra vires
Substantive ultra vires occurs when the secondary body goes beyond the scope of powers actually granted to it by Parliament. This means they have made regulations about matters they had no authority to regulate, or have made more extensive regulations than Parliament intended.
Case Example: R v Secretary of State for Health ex parte Pfizer Ltd (1999)
Facts: The government attempted to ban doctors from prescribing Viagra on the NHS based purely on cost considerations. However, the parent Act only gave the Secretary of State power to regulate prescriptions for medical reasons, not financial ones.
Issue: Did the Secretary of State have the power to ban Viagra for cost reasons?
Decision: The court held that banning Viagra for cost reasons was substantive ultra vires because it exceeded the powers granted by Parliament. The ban was therefore declared void.
Legal principle: Delegated legislation must stay within the boundaries of power granted by the parent Act. If a secondary body makes rules on matters outside their delegated authority, those rules will be struck down as ultra vires.
Wednesbury unreasonableness
Beyond the two types of ultra vires, courts can also strike down delegated legislation on the grounds of Wednesbury unreasonableness. This occurs when a piece of delegated legislation is "outrageous in its defiance of logic" – so unreasonable that no reasonable body could have made such a decision.
Landmark Case: Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948)
This landmark case established the principle that courts can intervene when a public body makes a decision that is so unreasonable that no sensible person could have reached it.
Legal principle: Courts can declare delegated legislation void if it is so unreasonable that no rational decision-maker could have created it. This sets a very high threshold but provides protection against extreme cases of poor decision-making.
While this ground for challenge is rarely successful (courts are reluctant to say that decisions are completely illogical), it remains an important safeguard against obviously absurd delegated legislation.
Effectiveness of court controls
While judicial review provides an important check on delegated legislation, its effectiveness has several limitations that must be understood.
Strengths of court controls
Court controls are effective when they are used. If a case comes before the courts, judges have clear legal tests (procedural ultra vires, substantive ultra vires, and Wednesbury unreasonableness) to determine whether delegated legislation is lawful. When legislation is found to be ultra vires, it is completely void, providing a decisive remedy.
Limitations of court controls
Reactive rather than proactive: Courts can only review delegated legislation after it has been made and come into force. They cannot prevent problematic legislation from being created in the first place. This means that bad law may have been in effect for some time before it can be challenged.
Expense and accessibility: Judicial review is an expensive legal process. Only those directly affected by the delegated legislation have standing to bring a case, and they must fund the proceedings themselves. This can cost tens of thousands of pounds, as demonstrated in the case of R (DSD And Ors) v The Parole Board and Ors (2018), which concerned Jon Venables' parole and involved substantial legal costs.
Time-consuming: The judicial review process can take months or even years to complete. During this time, the potentially unlawful delegated legislation remains in force and continues to affect people.
Limited scope: Courts can only examine whether proper procedures were followed and whether the secondary body stayed within its powers. They cannot question whether the delegated legislation is a good idea as a matter of policy – that is for Parliament to decide.
Dependence on individual action: Unlike parliamentary controls which operate automatically, court controls depend entirely on an affected party taking the initiative to bring a case. If no one challenges the legislation, it will remain in force regardless of how unlawful it might be.
Exam guidance
When answering questions about court controls on delegated legislation:
For "explain" questions: Clearly define ultra vires and distinguish between the two types (procedural and substantive). Use case examples to illustrate each type.
For "evaluate" or "discuss" questions: Consider both the strengths (clear legal tests, decisive remedies) and weaknesses (reactive, expensive, time-consuming) of court controls. Compare them with parliamentary controls to provide balanced analysis.
For problem questions: Identify whether the scenario involves procedural issues (correct procedure not followed) or substantive issues (exceeding granted powers). Apply the relevant type of ultra vires and use case law to support your reasoning.
Key command words:
- Analyse: Break down the different types of ultra vires and explain how each operates
- Evaluate: Assess the effectiveness of court controls, weighing their strengths against their limitations
- Discuss: Present arguments for and against the adequacy of judicial review as a control mechanism
Key Points to Remember:
- Judicial review allows the courts to examine delegated legislation and declare it void if it is ultra vires
- Procedural ultra vires means the secondary body failed to follow the correct procedure set out in the parent Act (e.g., Agricultural Training Board v Aylesbury Mushrooms Ltd)
- Substantive ultra vires means the secondary body exceeded the powers granted to it by Parliament (e.g., R v Secretary of State for Health ex parte Pfizer Ltd)
- Wednesbury unreasonableness allows courts to strike down delegated legislation that is "outrageous in its defiance of logic"
- Court controls are reactive – they can only be used after delegated legislation comes into force and only if someone brings a case
- Judicial review is expensive and time-consuming, which limits its effectiveness as a control mechanism
Key legal terms:
- Ultra vires
- Void/without legal effect
- Judicial review
- Queen's Bench Division
- Procedural ultra vires
- Substantive ultra vires
- Wednesbury unreasonableness
Critical cases:
- Agricultural Training Board v Aylesbury Mushrooms Ltd (1972) – procedural ultra vires
- R v Secretary of State for Health ex parte Pfizer Ltd (1999) – substantive ultra vires
- Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) – unreasonableness test