Judicial Review Challenges to Secondary Legislation in England and Wales: Courting Controversy

Abstract

The importance of secondary legislation in England and Wales cannot be understated. Its significance dwarfs the amount of political scrutiny which it receives. Secondary legislation can be subject to judicial review, but this may raise difficult constitutional issues. A potentially controversial ground of judicial review is that secondary legislation is contrary to the purposes of the enacting primary legislation. Examination of litigation regarding legal aid regulations shows how the courts’ view as to the purposes of such legislation can differ, revealing the essentially political choices which the courts have to make. There is however a way that will assist the courts in limiting such controversy if they find secondary legislation to be unlawful: they can order that the secondary legislation be quashed only from a future date, which would give Parliament or the executive time to address the legal defect identified. This encourages dialogue rather than conflict between the legal and executive branches of the constitution.