Controls exercised over DL by Judiciary Model Answer

• Delegated Legislation is the process of laws being created by authorities other than the Government. The power, authority and limitations as to what Delegated Laws can be made are contained within the Parent Act the Legislation is being made under, which is created by Parliament.
• The Courts can control Delegated Legislation through the process of a High Court Review in the King's Bench Division. This is where any person affected by the Delegated Legislation may challenge its legality. The Judiciary will consider the Legislation and whether it is Lawful or if it is Ultra Vires. This means it has gone beyond the powers given and can be one of three types of ultra vires; Procedural Ultra Vires, Substantive Ultra Vires, Wednesbury Unreasonableness.
• Procedural Ultra Vires is declared when the High Court have reviewed the Legislation and they believe that the organisation that have created the Law have not followed the correct procedure in doing so. The Parent Act will set out the procedure which must be followed, such as consulting with experts and if this is not done, the Legislation will be Ultra Vires.
• This was seen in the case of Agricultural Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd (1972) where a Statutory Instrument was declared Ultra Vires as the Minister for Agriculture had not made the proper consultations.
• Substantive Ultra Vires may be declared by the Courts if an appeal is made to them and the High Court Review shows that the Delegated Legislation has gone beyond the powers which were outline and stipulated in the Parent Act. This means that those who have been given the Power to create Legislation, by Parliament, have done more than they were allowed to. This would result in the Legislation created being void and unlawful. This was seen in DPP v Hutchinson (1990) where a By-law created by the Royal Air Force was deemed Substantively Ultra Vires.
• The final outcome from the High Court Judicial Controls is the finding of Delegated Legislation to be Wednesbury Unreasonable. This is where the Judiciary believe that the Delegated Legislation has created an unreasonable result for those who are affected by the Legislation. There is more concern here about the outcome and who is affected than how the Legislation was created. Agreement by the Courts will result in the Legislation being made void.
• The standard of unreasonableness was established in the case of Associated Picture House v Wednesbury Corporation (1948), which was held to be: 'They behaved in a way that no reasonable public body would behave.' Meaning, would any other person using this power have used it in the same way? Further examples of Wednesbury Unreasonableness have been seen in Rogers v Swindon NHS Trust (2006).