Procedural ultra vires occurs when a public authority exceeds its powers by failing to follow mandatory procedural requirements in its enabling act. Case law has established that statutory instruments will be invalidated if mandatory consultation or publication requirements are not followed, but not if the procedures are only directory. For example, in R v Secretary of State for Education and Employment, a statutory instrument setting teacher pay conditions was ruled ultra vires for failing to follow the powers granted by the enabling act.

1. Procedural Ultra Vires

2. Procedural ultra vires: Occurs when procedures
under the enabling act have failed to be followed
and refers mainly to the situation where a public
authority has over stepped its powers. Instruments
will be held to be ultra vires if a mandatory
procedural requirement has not been followed, but
will not be if the procedure is only directory.

3. R v Secretary of State for Education and Employment, ex
parte National Union of Teachers (2000): a High Court
judge ruled that a statutory instrument setting conditions
for appraisal and access to higher of pay for teachers was
beyond the powers given under the Education Act 1996 as a
result the statutory instrument was declared void. This case
demonstrated a clear example of where delegated
legislation can lead to abuse of powers and why it is
necessary to have controls over delegated legislation.

4. Agricultural Training Board v Aylesbury Mushrooms
Ltd (1972) (The Aylesbury Mushroom Case):
Consultation is mandatory where the statute stated
that there must be consultation. However, there is no
requirement to do any more than ask for the consulted
parties' views - they can be ignored.

5. Bailey v Williamson (1873): Held: The duty to
lay before Parliament is directory.

6. R v Sheer Metalcraft Ltd (1954): Held: The duty
to publish is directory.

7. R v Secretary of State for Health, ex parte U. S.
Tobacco International Inc (1992): A ban on oral
snuff was held illegal, as during the consultation
process the company was not given the scientific
grounds on which the ban was made. Held: unfair
consultation process can lead to the instrument
being quashed.