Delegated Legislation: Court Controls On Delegated Legislation – Judicial Review, Locus Standi, Procedural Ultra Vires, Substantive Ultra Vires, And Unreasonableness (Copy)

Introduction

• Delegated legislation is made by bodies other than Parliament under authority given by an enabling Act.
• Because it lacks the full democratic legitimacy of primary legislation, courts act as a safeguard to ensure delegated powers are not misused.
• Courts can review delegated legislation under the doctrine of ultra vires (Latin: “beyond the powers”) through judicial review.

The five key mechanisms are: judicial review, locus standi, procedural ultra vires, substantive ultra vires, and unreasonableness.

Judicial Review

• Definition
  • Judicial review is the process by which the courts review the lawfulness of decisions, actions, or regulations made by public bodies, including delegated legislation.
  • It does not question the merits of the decision but focuses on legality, procedure, and rationality.
• Legal Basis
  • Judicial review is a principle of common law, supported by the Human Rights Act 1998 and the Constitutional Reform Act 2005.
  • Provides a vital check on executive power.
• Grounds For Judicial Review (from Council of Civil Service Unions v Minister for the Civil Service (1985), the “GCHQ case”):
  1. Illegality – acting outside legal powers.
  2. Procedural Impropriety – failing to follow required procedure.
  3. Irrationality/Unreasonableness – decisions no reasonable body would make.
  4. Proportionality – especially under human rights law, courts consider whether action was proportionate to its aim.
• Example Cases
  • R v Home Secretary, ex parte Fire Brigades Union (1995): Home Secretary acted unlawfully by using delegated powers in a way that frustrated Parliament’s intention.
  • R v Secretary of State for Education, ex parte National Union of Teachers (2000): parts of SI relating to teacher pay were declared unlawful.

Locus Standi (Standing)

• Definition
  • To bring a case challenging delegated legislation, a person must show locus standi (sufficient interest in the matter).
• Legal Basis
  • Under s.31(3) Senior Courts Act 1981, judicial review applications require sufficient interest.
• Examples
  • R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses (1982): House of Lords held standing requires a “genuine grievance.”
  • Public interest groups may be granted standing if the issue affects wider society.
  • Example: R v Secretary of State for Foreign Affairs, ex parte World Development Movement (1995): group had standing to challenge unlawful foreign aid project (Pergau Dam).
• Significance
  • Ensures judicial review is not abused by those with no connection.
  • But courts interpret standing flexibly in public interest cases.

Procedural Ultra Vires

• Definition
  • Delegated legislation is invalid if the body making it fails to follow procedures required by the enabling Act.
• Examples
  • Aylesbury Mushroom Case (1972): SI requiring training for mushroom growers was declared void because the Minister failed to consult the Mushroom Growers’ Association as required by enabling Act.
  • Agricultural, Horticultural and Forestry Training Board v Aylesbury Mushrooms Ltd (1972): confirmed failure to follow mandatory consultation = invalid legislation.
• Evaluation
  • Ensures government cannot bypass consultation or parliamentary requirements.
  • Provides accountability by enforcing procedural safeguards.

Substantive Ultra Vires

• Definition
  • Delegated legislation is invalid if the content goes beyond the powers granted in the enabling Act.
• Examples
  • Customs and Excise Commissioners v Cure & Deeley Ltd (1962): delegated regulations that imposed tax liability beyond powers granted in enabling Act were held invalid.
  • R v Home Secretary, ex parte Fire Brigades Union (1995): Home Secretary exceeded power by introducing a new compensation scheme instead of implementing Parliament’s statutory scheme.
  • Attorney-General v Fulham Corporation (1921): local authority had power to provide wash-houses but opened a commercial laundry service → ultra vires.
• Evaluation
  • Protects parliamentary sovereignty by preventing misuse of delegated power.
  • Prevents government from using delegated legislation as a way to amend primary law without proper authority.

Unreasonableness (Wednesbury Unreasonableness)

• Definition
  • Delegated legislation may be struck down if it is so unreasonable or irrational that no reasonable authority would have made it.
  • Established in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948).
• Test (Wednesbury Test):
  • Decision must be “so unreasonable that no reasonable authority could ever have come to it.”
• Examples
  • Strickland v Hayes Borough Council (1896): bylaw prohibiting singing of obscene songs in public and private places was unreasonable because it extended too far into private life.
  • R (on the application of Daly) v Home Secretary (2001): confirmed courts can review decisions for proportionality, especially in human rights cases.
• Significance
  • Acts as a safety net where delegated legislation is technically within powers but grossly unfair or irrational.
  • Incorporation of proportionality under Human Rights Act 1998 has strengthened this control.

Evaluation Of Court Controls

• Strengths
  • Provides effective check on legality of delegated legislation.
  • Courts can strike down regulations that are unconstitutional, irrational, or procedurally unfair.
  • Protects the rule of law and ensures executive accountability.
• Weaknesses
  • Judicial review is reactive, not proactive – only happens if someone challenges.
  • Expensive and time-consuming – many unlawful regulations go unchallenged.
  • Locus standi rules may prevent individuals without direct interest from bringing cases, limiting oversight.
  • Courts cannot amend legislation; they can only declare it invalid.

Case Law Summary Table

Conclusion

• Court controls on delegated legislation are vital to preserve parliamentary sovereignty, the rule of law, and fairness.
• Through judicial review, locus standi, ultra vires doctrines, and unreasonableness tests, courts ensure delegated legislation remains within its legal limits.
• However, reliance on judicial review means many defective regulations may remain in force unless challenged, limiting the practical effectiveness of these controls.

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course