Effectiveness of Judicial Controls - DL Model Answer

• It can be argued that the process of Judicial Review is effective as it can be used to hold the Executive Government to account and, when this is done, the Government usually accepts the court's rulings and makes the relevant amendments to the law.
• One way the effectiveness of Judicial Controls can be identified is through the availability of High Court Reviews. This is available to anyone who is affected by a piece of Delegated legislation and as such, allows a system where the Public and the Judiciary are able to hold the Government and other law making bodies to account.
• Judicial Reviews can also be seen as effective as there are a number of possible ways in which the Judiciary can find a Delegated Law Ultra Vires. Judges can declare Delegated Legislation void if the correct procedure has not been followed - Procedural Ultra Vires (Agricultural Horticultural and Forestry Industry Training Board); if a minister has acted outside their powers - Substantive Ultra Vires (DPP v Hutchinson); or if it is making unreasonable regulations - Wednesbury Unreasonableness (Associated Picture House v Wednesbury Corporation).
• This shows effectiveness via the strict rules that must be followed in creating Delegated Legislation.
• Another way in which Judicial Controls are effective is that they apply to all types of Delegated Legislation. Unlike Parliamentary Controls, which only cover Statutory Instruments created by Government Ministers, Judicial Controls can be used to review Orders in Council, Statutory Instruments and By-Laws. This wider process shows that none of the Delegated Legislation methods are free from controls and all are open to scrutiny at some level.
• Finally, a Judge will check, through the Judicial Control process, to ensure that the Delegated Legislation has been made in accordance with the Enabling Act. This upholds Parliament supremacy and Parliament as Supreme Law Maker and ensures that no Law making bodies have gone outside of their powers in creating Delegated Legislation.
• However, it can also be argued that the Courts have little control as the Judicial Review process which relies on an individual starting a claim. Therefore the courts are powerless unless somebody brings a case for them to review. A barrier to potential claimant's doing so is the expense of taking proceedings to court, especially for an individual challenging the Government. Judicial Reviews are rarely funded by legal aid so they rely on individuals having the money, will and tenacity to pursue the case. There is guarantee the judicial review will be successful.
• Further, the Claimants wishing to seek judicial review must pass stringent tests (locus standi; they must be affected by the delegated legislation) before bringing a case which can exclude some if these tests are not satisfied. Therefore it can be difficult for individuals to find support or representation in these matters if there are limited people affected by an issue.
• Another drawback is that many of the Enabling Acts which provide the power to make Delegated Legislation also give ministers very wide discretionary powers in doing so, which makes it difficult for the Court to reach a finding of Ultra Vires.
• Finally, a judge can only declare the Delegated Legislation void if the correct procedure has not been followed, it has gone beyond the power or is unreasonable. If none of these are satisfied it cannot be declared void. Even if it is declared void, the Judge cannot amend it, only declare it void and send it back to Parliament for them to review which may not result in changes being made.