Ultra Vires Doctrine: Judicial the British Constitution - Essay Example

Does the Ultra Vires doctrine provide the best justification for judicial review of the British Constitution? Judicial review of the legality of actsof the executive represents the central method by which courts control exercise of governmental power; which in turn operates as a central underlying facet of the separation of powers principle propounded as a fundamental constitutional principle1. Moreover, the principle of separation of powers assumes that certain functions should be carried out by different institutions with neither impinging the other’s authority2. As Montesquieu argued; “All would be lost if the same man or the same ruling body……were to exercise these powers.3” Furthermore, Lord Acton commented that “Power tends to corrupt and absolute power corrupts absolutely4”. Accordingly, the preservation of separation of powers is essential as a check on autocratic power. As such, the doctrine of ultra vires is theoretically vital in serving as a testament to the independence of the judiciary in its role under the fundamental constitutional separation of powers in ensuring that public bodies, such as government departments, local authorities, tribunals, agencies have not acted ultra vires5. Moreover, the ultra vires doctrine is cited as the first principle of natural justice and the rule of law that public bodies are required to act within the scope of the powers allocated to them by Parliament6. The incorporation of the European Convention of the Human Rights (implemented through the Human Rights Act 1998) further requires judicial review to ensure that public authorities do not “act in a way which is incompatible with a convention right7”. Indeed, Doctor Yardley asserts that judicial review is “the ultimate safeguard for the ordinary citizen against unlawful action by …….the more powerful administration8”. Alternatively it has been argued that the ultra vires doctrine is inherently limited by enabling a process by which courts scrutinise and consider the validity of the manner in which public authorities have made a decision9. The essence of judicial review is to ensure that public authorities act appropriately in exercising their duty10 regardless of the merits of the decision, which in itself begs the question as to the efficacy of the judiciary’s role under the separation of powers to truly act as a curb on the legitimacy of abuses of power by the executive11. This is further compounded by the fact that the judiciary has evolved and expanded the parameters of the ultra vires doctrine on an ad hoc basis in order to circumvent the inherent limitations of judicial review12. The focus of this analysis is to evaluate whether these problematic issues cited as undermining the practical efficacy of the ultra vires doctrine in fact provide the best justification for a review of the British constitution; which will be further briefly considered in context of the implementation of the Constitutional Reform Act 2005 which was propounded as the “biggest constitutional shake up for years13”. In general terms, illegality or ultra vires is applicable where a body has acted beyond its powers14: “The simple proposition that a public authority may not act outside its powers (ultra vires) might fitly be called the central principle of administrative law15”. When a power vested in a public authority has been exceeded, acts done in excess of the power are regarded as invalid as being ultra vires16. The ultra vires doctrine is not applicable to question the validity of the act itself, it simply applies as a control mechanism to ensure that the powers given to the public body under the relevant legislative measure are not exceeded.17 Furthermore, there are varieties of classification applicable when considering illegality18. For example, the first classification is improper purpose, which in practice has arisen from mistaken interpretation by a public authority of its powers19. For example, in the case of Padfield v Minister for Agriculture, Fisheries and food (1968)20, a committee set up under the Agriculture Market Act 1958 had powers to make inquiries if the minister “so directed”, into complaints made to the minister concerning the operation of (amongst other similar products) milk. The minister refused to refer this matter to committee for investigation. The House of Lords ruled that if the minister was not obliged to refer complaints, he did not have unfettered discretion to refuse to refer a case either. However, the very fact that this rationale appears to be articulated in context of the merits of the decision as opposed to the legality of the act undermines the central purpose of ultra vires, highlighting the difficult balancing act which must be met by the judiciary21. Not only does this facilitate potential for abuse of power by the judiciary, it compounds legal uncertainty as to the parameters of the ultra vires doctrine, which is further highlighted by the error of law classification. The second classification of illegality is error of law, which covers cases where an authority which is entrusted with discretion must direct itself properly on the law or its decision may be declared invalid22. However, the error of law doctrine goes further than mistake in statutory interpretation. A minister commits an error of law if they act when there is no evidence to support the action or come to a conclusion on which the evidence he could not have reasonably come to23, which necessarily involves subjective assessments of the court to determine parliamentary intention. The case of Animic Limited v Foreign Compensation Commission (1969)24, abolished the previous distinction between errors of law that went to jurisdiction and errors of law that did not using Lord Denning MR’s reasoning in the case of Deartman v Keeps25: “no court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends26”. Furthermore, irrelevant considerations covers situations where powers are not lawfully exercised where the decision maker takes into account factors that in law are irrelevant or leaves out of account relevant matters27. However, the Animic decision fuelled academic debate regarding the inefficiency of the ultra vires doctrine as a tool in the judiciary’s fundamental role under the separation of powers doctrine28. This was further compounded by the inherent uncertainty of the concept of natural justice, which is further demonstrated by the contradictory rationale in the Animic case particularly where Lord Wilberforce arguably undermines the essential objective of the ultra vires doctrine by asking “what would be the purpose of defining by statute the limit of a tribunal’s powers, if by means of a clause inserted in the instrument of definition, those limits could safely be passed?29” Moreover, in the CCSU Case30, Lord Roskill highlighted that the constitutional doctrine of the separation of powers meant that the ultra vires doctrine could not be utilised to challenge policy decisions31. However, as evidenced by the landmark case of R v Panel on Takeovers and Mergers, ex parte Datafin32the Court of Appeal widened the ambit of ultra vires to review the conduct of certain companies during a contested take over bid failing at a panel for Takeovers and Mergers hearing. The Court of Appeal held the private body amendable to judicial review by widening the ambit of “public functions” thereby ignoring the source of law in considering judicial review applications. The Datafin case sent shockwaves through academic circles as an ad hoc extension of the parameters of the ultra vires doctrine with the judiciary effectively entering political territory33. This issue has continued to be come pertinent with the implementation of the European Communities Act 1972 (ECA) and the Human Rights Act 1998 (HRA). This is further evidenced by the case of Transport, ex p Factortame (No.234), where it was held that the principle that an injunction could not be obtained against the Crown could be set aside if it prevented the granting of interim relief in a dispute governed by EC law. This major shift saw the House of Lords expressly acknowledging primacy of EC law over national legislation and demonstrated the limitations on Parliamentary intention being implemented if legislative provisions contravened rights under EC law35. In addition to the radical shift in constitutional convention, the Factortame decision also highlighted the conflict between established constitutional rights and widening concepts of democracy imported through the supremacy doctrine36. The Factortame decision was further significant due to the House of Lords’ effective entrenchment of the ECA in fettering continuing supremacy of Parliament, which contradicts the convention that Parliament cannot bind its successors37. Sir William Wade described this as a constitutional revolution, whereby “Parliament of 1972 had succeeded in binding the Parliament of 1988 and restricting its sovereignty, something that was supposed to be constitutionally impossible”38. The Factortame decision further created a shift in approach demonstrating that the courts are willing to apply supremacy instead of circumventing the concept with strained concepts of purposive construction. Wade argues that “if there had been any such provision in the Act of 1988 we can be sure that the ECJ would hold that it was contrary to Community Law to which under the Act of 1972 the Act of 1988 is held to be subject39”. This not only suggests that doctrine of implied repeal has been abolished it appears to cement the independence of the judiciary under the separation of powers at the expense of Parliamentary supremacy; further widening the power of the judiciary to abuse the ultra vires doctrine in its role under the separation of powers doctrine. Whilst the parameters of the ultra vires doctrine are uncertain, it is nevertheless too dogmatic an assertion to say that the doctrine itself provides the best justification for review of the British Constitution. The theoretical justification for the doctrine as a tool in the fundamental principle of separation of powers remains sound, however the ad hoc expansion of its boundaries into political waters highlights the blurring of distinction between the roles of the judiciary and executive in policy making under fundamental constitutional convention. Whilst the boundaries between these roles under the constitution continue to remain unclear, it is submitted that there can be no real separation of powers which undermines the overall democratic objective of British constitutional theorem. Moreover, notwithstanding the welcome objectives of the Constitutional Reform Act 2005 (the Act) in recognising the need for the UK to redress the inconsistencies and internal contradictions in the previous application of the separation of powers, the inherent difficulty in any “constitutional” reform in the UK is that due to the lack of a written constitution, it is arguable that any such provisions lack constitutional basis40. Le Sueur highlights that the lack of a codified constitution in the British system intrinsically fails to entrench constitutional power and in particular the judiciary41. This reasoning suggests therefore that due to the lack of precise definition regarding boundaries of judicial power, it is effectively impossible to change their powers through constitutional reform42, which again undermines separation of powers. Moreover, the Act raises issues as to whether Britain needs a wider debate on its constitution in general before it can move forward with an adequate application of the separation of powers, which must be addressed. It is only when the demarcation lines setting out the exact parameters of powers and channels of communication between the judiciary and the executive is clear, that the ultra vires doctrine can be utilised as meaningful tool in acting as a check on executive power with legal certainty and consistency. Bibliography H. Barnett., (2004). Constitutional and Administrative law. 5th edition Routledge Cavendish A Bradley., (2006). Constitutional and Administrative Law. 14th Edition Longman. A. Carroll., (2007). Constitutional and Administrative Law. 4th edition, Pearson Education Harlow Mark Elliot., (1999). The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law. Cambridge Journal of Law Volume 58 129. Lord Falconer LC., 657 HL Debs, col. 13 (26 January 2004). A King., (2001) Does the United Kingdom still have a constitution? Sweet & Maxwell. Leyland., & Papworth (2006) Textbook on Administrative Law. Oxford University Press. Montesquieu., “The Spirit of Laws” (1748) reported (2002) Prometheus Books, pp.19-28. Lord Steyn in Ministerial Speech, Constitutional reform: strengthening democracy and rights (2004). Loveland., (2006). Constitutional, Administrative Law and Human Rights. 4th Edition Oxford University Press Le Sueur., A., (2005). Judicial Power in the Changing Constitutions: In Jowell & Olive (Eds.). The Changing Constitution, Chapter 13. C. Turpin & A. Tomkins., (2007). British Government and the Constitution: Text and Materials. 6th Edition Cambridge University Press. . H W R Wade & Forsyth (2004). Administrative law. 9th edition Cambridge University Press. Lord Woolf., (2005). Singapore Academy of Law A, Constitutional Protection without a Written Constitution. Woolf., (2004) “The Rule of Law and a Change in the Constitution”. Volume 63(2) Cambridge Law Journal. Lord Woolf., (2001). Judicial Law Handbook. 3rd Revised Edition Hart Publishing. D C M Yardley (1984). A Source Book of English Administrative Law. Modern Law Review, Volume 27 Statutes Constitutional Reform Act 2005 European Convention on Human Rights. Read More