Judicial Controls

Through the process of judicial review, the Divisional Court exercises its "inherent power" to scrutinise delegated legislation, and can declare it to be invalid in whole or in part if it is illegal, irrational or procedurally improper.

Legislation is invalid if it purports to go beyond the powers delegated by the enabling Act. The rules of statutory interpretation, for example, exclude (unless granted expressly and very clearly) the power to raise taxes, the power to exclude citizens' access to the courts, and the power to legislate retrospectively.

R v Wood (1855) 119 ER 400, QB

The Public Health Act 1848 gave power to local health boards to make bye-laws requiring the removal of "dust, ashes, rubbish, dung and filth" from pavements. D was prosecuted for non-compliance with a Burslem bye-law that required the removal of snow, but the court said this was ultra vires. Freshly-fallen snow could be pure, so snow could not be regarded as "filth" as the board claimed.

Chester v Bateson [1920] 1 KB 829, DC

Regulations made under the Defence of the Realm Act 1914 made it an offence for any person to take proceedings to evict a tenant in a designated area without the consent of the Minister of Munitions. P sought to evict a tenant; the magistrates declined to hear his argument but stated a case for the Divisional Court. Allowing P's appeal and remitting the case for hearing on its merits, the court said the regulations were ultra vires insofar as they sought to deny a citizen's access to the courts.

Attorney-General v Wiltshire United Dairies (1922) 91 LJKB 897, HL

Wartime legislation allowed the Food Controller to regulate the supply of food in such manner as he thought fit. He made regulations restricting the transportation of milk to those holding a special licence, for which a fee of 2d per gallon was payable. The House of Lords declared this regulation ultra vires: it was equivalent to a tax, and no tax can be levied without the express consent of Parliament.

DPP v Hutchinson [1990] 2 All ER 836, HL

DD were prosecuted under a byelaw which purported to exclude all civilians from Greenham Common. The enabling Act had given the Minister power to make such byelaws so long as they did not exclude persons with rights of common. Quashing DD's conviction, the House of Lords said delegated legislation which on its face was ultra vires the enabling statute, and which was not textually severable, could still be enforced if the offending part was substantially severable without essentially affecting the purpose of the byelaw. In this case, however, no sensible severance was possible - modified byelaws permitting the entry of persons with rights of common would have been incapable of serving the same purpose - so that the appellants (who did not themselves claim rights of common) were entitled to have the byelaw struck out and their convictions quashed.

R (Haw) v Home Secretary (2005) .....

The Serious Organised Crime and Police Act 2005 made it a criminal offence to start a demonstration in a defined area around Parliament without police authorisation, and authorised the Home Secretary to make by order such "transitory, transitional or saving" orders connected with the coming into force of these provisions as he thought appropriate. The Home Secretary made an order purporting to extend the offence to demonstrations started before the commencement date and continuing thereafter, and the applicant (who for some four years had been conducting a demonstration against the Iraq War) sought judicial review. The Divisional Court said the relevant provisions could not properly be described as "transitional" and were thus ultra vires.

Delegated legislation may also be invalid if it has been made for improper reasons.

R v Somerset CC ex p Fewings [1995] 3 All ER 20, CA

A local authority voted to ban stag hunting on land which it owned, and officers of the hunt sought judicial review of this decision. Laws J and the Court of Appeal said the majority of councillors in voting for the ban had been swayed by irrelevant factors (namely, their belief that hunting was immoral); they should have considered only whether the proposed measure would be for the benefit or improvement of the area. The decision should therefore be quashed.

Where the enabling Act set out a particular procedure for making the delegated legislation (for example by including a requirement to consult) the legislation may be invalid if the proper procedure was not followed.

Agricultural Training Board v Aylesbury Mushrooms [1972] 1 All ER 280, Donaldson J

Legislation required the Minister to consult relevant bodies before making Orders of a certain type, and through a clerical error there was no consultation with the Mushroom Growers' Association (who were conceded to be a "relevant body" for this purpose). The court ruled that the consultation requirement was mandatory, and that its breach made the Order invalid as far as mushroom growers were concerned.

Delegated legislation may be invalid if it is excessively vague, or if it is so irrational that no reasonable person could have made it. This is not a decision to which the courts come very readily, but in extreme cases it may be appropriate.

Strickland v Hayes [1896] 1 QB 290, DC

Acting under the Local Government Act 1888, Worcestershire CC made it an offence to sing or recite any profane or obscene song, or to use any profane or obscene language "in any street or public place or on land adjacent thereto". Quashing A's conviction, the court said this went beyond the scope of the parent Act (which was concerned with the prevention of annoyance to others) and was consequently invalid, even though in the instant case A had been speaking on a public footpath surrounded by many other people.

Kruse v Johnson [1898] 2 QB 91, DC

Kent CC made a byelaw prohibiting any person from singing or playing music in a public place within fifty yards of a dwelling house, having been asked to stop. An evangelist A conducted an open-air service and sang hymns in the street, in spite of having been asked not to. The Divisional Court affirmed his conviction: when the court is called on to consider the validity of bye-laws made by public representative bodies (as opposed to railway companies and the like), said Lord Russell CJ, they ought to be supported if possible. Obiter, a byelaw could be declared invalid if it was manifestly unjust or oppressive or disclosed bad faith on the part of its makers.

Nash v Finlay (1901) 20 Cox CC 101, DC

A woman A who used abusive language to another person was convicted by justices under a Stafford Borough byelaw providing that "no person shall wilfully annoy passengers in the streets". The Divisional Court allowed her appeal on the basis that the bye-law did not give an adequate indication of what conduct it was meant to prohibit. Lord Alverstone CJ said a bye-law must be at least certain in its scope and reasonable in its content.

Sparks v Edward Ash [1943] KB 223, CA

P was knocked down by a lorry while using a pedestrian crossing in the blackout. The judge found that Regulations made in 1935 imposed what amounted to absolute liability on any driver failing to give way at a pedestrian crossing, and excluded any consideration of P's contributory negligence. The Court of Appeal said such an interpretation was unreasonable in wartime blackout conditions, and returned the case for trial.

Boddington v British Transport Police [1998] 2 All ER 203, HL

British Rail (shortly before privatisation) made a byelaw under s.67(c) of the Transport Act 1962 as amended, prohibiting smoking where "no smoking" notices were displayed; they subsequently introduced a total ban on some trains and displayed notices to this effect. A smoker A defied this prohibition; he was convicted and fined £10 by the stipendiary magistrate, and appealed on the grounds that the application of the byelaw was irrational and therefore ultra vires. Dismissing his appeal, Lord Irvine LC said A was entitled to challenge the validity of the bye-laws in criminal proceedings against him, but a ban on smoking in all railway carriages is a way of regulating the use of the railway, and British Rail had not exceeded their powers.

Delegated legislation made under powers granted by one Act is normally invalid if it is inconsistent with the provisions of another Act, irrespective of which was made first. In particular, the Human Rights Act 1998 effectively makes unlawful and ineffective any delegated legislation that violates Convention rights, unless the enabling Act is so clear and so draconian as to make this violation not just permissible but unavoidable.

R v Secretary of State for Social Security ex p B [1996] 4 All ER 385, CA

An asylum-seeker B sought judicial review of Regulations withdrawing all social security benefits from those who sought asylum after having been admitted to the UK, rather than at the moment of entry. Reversing the Divisional Court and granting a declaration that the Regulations in question were ultra vires, notwithstanding their approval by Parliament, Simon Brown and Waite LJJ said subordinate legislation must not only remain within the powers granted by the enabling Act, but must be consistent with any other primary legislation.

The Asylum and Immigration Appeals Act 1993 expressly granted asylum seekers a right to seek asylum (and to appeal against a refusal); Regulations effectively depriving them of any means of support for months or years would make it impossible for them to exercise that right, and must consequently be invalid. (The policy contained in the invalid Regulations was subsequently enacted in statute.)

R (Javed) v Home Secretary [2001] 3 WLR 323, CA

The Home Secretary (Michael Howard) made an Order under delegated powers, in which Pakistan was designated a "safe country" in which there was in general no serious risk of persecution, and to which rejected asylum-seekers might be returned after an accelerated appeal process. J and other applicants sought judicial review of that decision on the basis that it was factually wrong. The judge said the provisions of Art.3 of the Convention, which guarantee freedom from torture and inhuman and degrading treatment, made it necessary for the court to depart from normal practice and examine the merits of the decision. Having done so, he said the decision to include Pakistan could only have been based on an erroneous view of the facts or the law or both: the Home Secretary was plainly wrong, and a declaration would be granted to this effect. The Court of Appeal agreed.

R (Bono) v Harlow DC [2002] 1 WLR 2475, Richards J

Applicants sought to challenge the decision of the district housing review board that they were not entitled to housing benefit, and argued that since the board consisted of councillors appointed by DD they had been denied the right to a hearing before an independent and impartial tribunal. The judge agreed, and said the relevant Regulations, although themselves authorised by statute, were incompatible with the Human Rights Act. Section 6(2) of the Human Rights Act 1998 applies only where the primary legislation requires such incompatibility, not where (as here) it merely permits it. It followed that the Regulations were invalid and the council's compliance with them unlawful. [Note: The procedures had in fact been changed to provide an independent review, before this case came to court.]

The court will not strike out legislation simply because it thinks the policy behind it was wrong, or the detailed rules undesirable.

Nottinghamshire CC v Secretary of State [1986] 1 All ER 199, HL

A local authority sought to overturn the government's limit on their spending and cuts in the rate support grant. Refusing their claim, Lord Scarman said it would not be constitutionally appropriate, save in very exceptional circumstances (as for example where the Minister had misled the House, or both the Minister and the House had misconstrued the enabling statute), for the courts to intervene on the ground of unreasonableness to quash guidance framed by the Secretary of State and implicitly approved by the House of Commons. If the House of Commons was supervising the exercise of Ministerial powers, the courts should stand back.