“Unreasonableness is one of the grounds of judicial review available to test the validity of delegated legislation”-illustrate & explain
“Unreasonableness is one of the grounds of judicial review available to test the validity of delegated legislation”
According to the statement it says that the unreasonableness of any work is used as a basis for the judicial review to measure and estimate given to me along with the power to implement and administer, and to identify whether my decisions are valid or not. Note that it is not the only work of the parliament to monitor, review and hence issues a law regarding the subject matter, therefore they have appointed and given the power to its subordinate and authorized sections to administer the relatively small issues. Unreasonableness is the extent of how the appointed government officials are using/utilizing their entitled power to the level which could be identified as meaningless or absurd. There are several grounds based on which a judicial review can be conducted but this paper will strictly follow the unreasonableness as a potential ground.
What is Judicial Review
Judicial review is the court’s power to review an official act of a government. It is one of the prime factors of any democratic government. However the judicial review is considered to be different in different legal systems, as said: “There are two distinct legal systems, civil Law and common law, who have different views about judicial review ” where the common law is considered as the source of law and the judges preserve the right to apply the law by creating it or diminishing the legal rules; on the other hand the concept of separation of powers states that no branch of a government can be more authoritative than other there should be a balance amongst all.
A reason why judicial review is portrayed in the context of this two legal systems in due to the limitations of delegating the power completely in the hand of the government Nowadays many nations have implemented the judicial review to monitors and limits the tyranny of the masses (where the conflict interests between the majority group and the minority group differs so much that it constitutes to an active oppression).
What is Delegated Legislation
It is the law that is made by the executive authority (a part of the government who has sole authority to run the state) of a country with the power that is given to them by primary legislation (the laws made by the branch of government who has the power to enact statutes). Therefore it is a must that the delegated legislation is approved by the primary legislation. A secondary or delegated legislation is used as a term for orders, rules and regulations etc. which are made by ministers of the government by the power delegated by the government. An example of a delegated legislation would be the extension of the maternity leave from four months to six months by the finance minister under the Bangladesh Labor act 2006 (http://newagebd.com/newspaper1/archive_details.php?date=2011-01-12&nid=4825).
Another important aspect of delegated legislation is the Scrutiny Committee. It reviews all the statutory instruments and navigates the focus of the parliament to a certain point. The Scrutiny Committee is always active in its command and control and reviews all the statutory in such a greater detail which is impossible for the parliament to do. On the other hand it is an accepted fact that if any part of the delegated legislation goes beyond its limitations and affecting them according to that legislation, they preserve the right to challenge its validity in the court, and later the court will decide whether it will be subject to void or not. For example the case of Boddington v British transport Police where Boddington was smoking on the train whereas smoking on the train was forbidden by the law. Boddington argued that restricting smoking on the train does not fall under the jurisdiction of British Railways and that its practice is beyond the power given by by-law 20 of British Railways board By-Laws 1965 (made under the transport act 1962).
Generally there are three types of delegated legislation: Statutory Instruments (SIs), Orders in Council and By-Laws.
How Delegated Legislation is subject to judicial review
As mentioned delegated legislations can be challenged by judicial review for its validity or acceptability, judicial reviews are handled by the administrative court where the court can question the responsible for their issuing any power or whether they have referred to the parent act. What the court cannot do is to question the validity of the act.
The grounds of judicial reviews are:
· Lack of certainty, and
· Defense to a charge.
What is Unreasonableness
According to Lord Greene:
“It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming … It is not what the court considers unreasonable, a different thing altogether. If it is what the court considers unreasonable, the court may very well have different views to that of a local authority on matters of high public policy of this kind. Some courts might think that no children ought to be admitted on Sundays at all, some courts might think the reverse, and all over the country I have no doubt on a thing of that sort honest and sincere people hold different views. The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another. It is the local authority that are set in that position and, provided they act, as they have acted, within the four corners of their jurisdiction, this court, in my opinion, cannot interfere”
Unreasonableness is one of the final grounds based on which the court can declare the validity of a delegated legislation, If the rules are unfair or irrational in anyway. The government have delegated the legislations to various sections for betterment of all, but there is also a chance of misuse of the power purposefully or based on a weak judgement. Therefore the people who are responsible to create such laws are carefully monitored so that they are unable to exceed their power exceeding the legislation itself and not being questioned for.
Another popular term for unreasonableness is the ‘Wednesbury principle’ which was developed in the case of Wednesbury Corporation. Briefly, it says that the Wednesbury Corporation operated a cinema hall with a declaration of not allowing any children less than 15 years of age. The related picture houses declared that such a condition is pointless and they do not have the right and power to impose such condition. If the court had to intervene, they would have to come to a conclusion about the Wednesbury Corporation of:
· Taking into account of the factors for decision making that should have not taken for, or
· The Corporation failed to take into account of the factors that had to be considered, or
· The decision was so unreasonable that no reasonable authority would ever consider imposing it
However, that is another story of what actually happened to the Wednesbury trial.
Reasons for delegating and controls
Since the delegated legislations are not made by the parliament and is mostly created by local authorities it is important to have enough control over it so that the power is not misused. Another problem with delegated legislation is sub-delegation as a result the power is taken even further from the elected. Hence, it appears to be undemocratic and in need of careful monitoring.
The reason that the power is delegated to different sections of government and other responsible bodies is because of fact that not all the laws are possible to review and approve in the parliament. It would consume up so much time that it is not a practical/feasible idea to respond and review every matter and suggest a law for any given situation. We cannot expect the parliament to pass a law regarding the eve teasing through the social networking site (like Face book™) unless it is an epidemic and prone to crime and subject to immediate action to prevent it. The parliament can neither discuss nor review the usage or limitations of technology, it needs an expert to think of the potential harm it can cause. In such cases the delegation of legislation comes to deal with these issues leaving the government to worry about the national issues.
Unreasonableness as a ground of judicial review to test the validity of delegated legislation
In simple words unreasonableness is ground of judicial review is a constitutional principles and a useful keeper to deal with the patented bad decisions. However, the court makes a secondary decision whereas the primary decisions are left to the public authorities. As for the disapproval of unreasonableness on the basis of review is uncertain and is only considered as a choice to the public authority in any given situation. It allures the legal authority to deal with the protests or criticisms rather than questioning the legality of the issue.
In our words unreasonable is a vague concept since it varies from person to person as well as perception but it is struggling to survive. However, even the judicial review needs too many principles to guide it. On the other hand delegated legislation is necessary for many reasons which facilitate the more faster and precise set of legislation to be created, this would have not been possible to achieve from the parliament. However, delegated legislation is not so democratic in contrast with the statutes therefore its use should be closely monitored to prevent abuse of power.
There are also other factors through which unreasonableness can be justified for any delegated legislation to test its validity but there are cases where no reasonable body would have come to the same conclusion meaning that there will be cases so illogical and/or irrational that it would be difficult to come to conclusions and even if the court somehow manages to get into one it will vary from one to another.
Reference and Bibliography
7. The rise and ruin of Unreasonableness: https://docs.google.com/viewer?a=v&q=cache:k2_XdBbAlMoJ:www.adminlaw.org.uk/docs/ALBA-A%2520Le%2520Sueur%2520paper+&hl=en&pid=bl&srcid=ADGEESgEJRIrwipzPUPPwdjCH3tCNNCx2cyakgnaTunuZwCfElUAz4bTy2CV066nD8mBOaBb2wjsp69pAlOXEugAof_tfByIiTiRTx3rgx0O_4lGqBCKR6h9qm-f3RBu_pqWVOkdhxnY&sig=AHIEtbSvcYDyb-6FTPwldhETv7BPZo2Jlw
Associate Provincial Picture Houses Ltd v Wednesbury Corp