Judicial Controls

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Explain Judicial Controls on Delegated Legislation

JUDICIAL CONTROLS: where the COURTS exercise CONTROL through a process known as JUDICIAL REVIEW.

JUDICIAL REVIEW: JUDGES asked to REVIEW the DL and decide if it is LAWFUL. The grounds for this is if the individual believes that the piece of DL = ULTRA VIRES.

ULTRA VIRES=  the DELEGATED BODY has gone BEYOND the POWERS granted to it by PARLIAMENT.

If the COURTS find a piece of DL= ULTRA VIRES it will be declared VOID and INEFFECTIVE.

A COURT CAN DECLARE DELEGATED LEGISLATION ULTRA VIRES FOR 3 REASONS.

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Procedurally Ultra Vires.

COURTS can declare the DL to be PROCEDURALLY ULTRA VIRES if INCORRECT PROCEDURES were followed when INTRODUCING the LEGISLATION.

This is a LEGAL CHALLENGE through a PROCESS known as JUDICIAL REVIEW in the HIGH COURT.

AYLESBURY MUSHROOMS CASE: The PARENT ACT required the MINISTER OF AGRICULTURE to CONSULT RELEVANT BODIES before making ORDERS to set up TRAINING BOARDS. The MINISTER DID NOT CONTACT the AYLESBURY MUSHROOM GROWERS ASSOCIATION.

COURT ruled that as these 3 mushroom growers were NOT consulted, the ORDER DID NOT apply to them.

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Substantively Ultra Vires.

COURTS can declare the DL to be SUBSTANTIVELY ULTRA VIRES if the BODY acts BEYOND the POWERS given to it in the ENABLING ACT.

  • Eg) Adding Cats to the DANGEROUS DOGS ACT.
  • In the FULHAM CORPORATION CASE, FULHAM CORPORATION were given the POWER  to BUILD PUBLIC WASHING FACILITIES, it built a LAUNDRY. This = ULTRA VIRES as it went BEYOND their POWERS.
  • In DPP V HUTCHINGSON 1990, PARENT ACT gave the COUNCIL the POWER to make certain BY-LAWS, but this power DID NOT include EXCLUDING PEOPLE WITH RIGHTS OF COMMON.
  • FEMALE PEACE PROTESTER was PROSECUTED and SUCCESSFULLY argued that the BY-LAW excluding her from GREENHAM COMMON went BEYOND the powers enabled by the PARENT ACT. This was ULTRA VIRES as it went BEYOND their powers. HER CONVICTION WAS QUASHED.
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Delegated Legislation : UNREASONABLE

Test was recognised in ASSOCIATED PICTURE HOUSE V WEDNESBURY CORPORATION where the COURT  decided that the LOCAL CORPORATION (council) had behaved unreasonably BANNING CHILDREN from the local cinema on Sundays.

TEST= that the PUBLIC BODY behaved in a way that no reasonable public body would behave.

  • In ROGERS V SWINDON, NHS TRUST 2006, a woman with early stage cancer was refused a drug by her local NHS trust.
  • Court ruled that this decision was irrational and unreasonable and that the NHS trust COULD NOT put forward any CLEAR REASONS for providing the drug for some patients and not for others.
  • As a result the decision to not supply the drug was ruled UNLAWFUL.
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