Delegated Legislation: Procedural Ultra Vires

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Delegated Legislation: Procedural Ultra Vires

  1. 1. Procedural Ultra Vires
  2. 2. Procedural ultra vires: Occurs when proceduresunder the enabling act have failed to be followedand refers mainly to the situation where a publicauthority has over stepped its powers. Instrumentswill be held to be ultra vires if a mandatoryprocedural requirement has not been followed, butwill not be if the procedure is only directory.
  3. 3. R v Secretary of State for Education and Employment, exparte National Union of Teachers (2000): a High Courtjudge ruled that a statutory instrument setting conditionsfor appraisal and access to higher of pay for teachers wasbeyond the powers given under the Education Act 1996 as aresult the statutory instrument was declared void. This casedemonstrated a clear example of where delegatedlegislation can lead to abuse of powers and why it isnecessary to have controls over delegated legislation.
  4. 4. Agricultural Training Board v Aylesbury MushroomsLtd (1972) (The Aylesbury Mushroom Case):Consultation is mandatory where the statute statedthat there must be consultation. However, there is norequirement to do any more than ask for the consultedparties views - they can be ignored.
  5. 5. Bailey v Williamson (1873): Held: The duty tolay before Parliament is directory.
  6. 6. R v Sheer Metalcraft Ltd (1954): Held: The dutyto publish is directory.
  7. 7. R v Secretary of State for Health, ex parte U. S.Tobacco International Inc (1992): A ban on oralsnuff was held illegal, as during the consultationprocess the company was not given the scientificgrounds on which the ban was made. Held: unfairconsultation process can lead to the instrumentbeing quashed.

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