Ultra vires can fall into two of the three grounds of review mentioned by Lord Diplock. Under the ground of illegality, the authority in question may be said to have acted ultra vires if its proceedings were in excess of power, carried out unlawfully or beyond its jurisdiction. Under the grounds of procedural impropriety, Lord Diplock indicated that it included a breach of the rules of natural justice at common law and/or a failure to observe procedural rules specified by the statute conferring the jurisdiction. Lord Scarman and Lord Brightman have both referred to it as “procedural irregularity”. Judges for instance, would hold it as an ultra vires procedural impropriety if a third party who was not delegated power to make decisions decides a matter.Bias is also considered as procedural impropriety and will be held as acting ultra vires and judges use the Latin maxim of nemo judex in causa sua, “A man must not be a judge in his own cause.”
The ultra vires doctrine is unsatisfactory because it is unrealistic to assert that judicial review constitutes nothing more than an implementation of legislative intention. Lord Woolf and Sir John Laws have expressly emphasised that the doctrine of ultra vires is an artificial one mainly because the legislature could never have formed an intention, express or implied on the principles which form the law of judicial review. It is clear that the content of the rules of natural justice and irrationality are judicial not legislative constructs. They also argue that the concept of ultra vires can simply play no part in determining whether non-statutory bodies which exercise no legal powers at all are subject to judicial review. The doctrine of ultra vires is unable to explain the derivation of the grounds for review, the court’s treatment of ouster clauses, the development of administrative law across time and finally the extension of judicial review to non-statutory bodies.
Other downfalls of the ultra vires doctrine have arisen from the developing theory that the judiciary does not have the democratic mandate to come to the conclusion that the executive has overstepped the scope of its powers. The use of the ‘ultra vires’ doctrine as a basis for judicial review has resulted in the following problems:
- Not all governmental power is derived from statute. Some important areas of government activity are regulated by the Royal Prerogative and could not be controlled by the ‘ultra vires’ doctrine.
- The concept of abuse of power blurred the distinction between ‘merits’ and ‘vires’ of a decision. It has not been made clear how far the executive power can be questioned and if the expansive power of judicial review perverts the democratic mechanism of the British constitution and most significantly, whether it hinders potential important actions of the executive.
- There was no clear theory of jurisdiction and it was impossible to predict when exactly the courts could intervene and whether the courts would have to await a claim to be made against an obvious injustice.
- A number of approaches to judicial review have been adopted and adapted allowing administrative law to evolve and develop quite significantly.
I will assess three new justifications of judicial review. These include: (1) The Jurisdictional Fact Approach, (2) The Ansimic Approach and (3) A new approach (GCHQ)
The Jurisdictional Fact Approach
In this approach, the courts draw a distinction between facts which are within the tribunal’s jurisdiction and those outside it. The facts within the tribunal’s jurisdiction include only those that a tribunal alone decides. Those outside their jurisdiction are facts that must be established as a condition precedent for a tribunal to exercise its power. An example is qualifying a period of employment to be eligible for statutory protection as an employee. If the jurisdictional fact is not established the tribunal has no power to make a decision. It would be a jurisdictional error and a nullity. The problem is it is difficult to distinguish between jurisdictional facts and facts within the jurisdiction. This severely restricts judicial review as it does not allow any review regarding abuse of power decisions taken within the jurisdiction, which is essential to control unfettered discretion.
The Ansimic Approach
This states jurisdiction is conditional upon its proper exercise. Even if the tribunal is entitled to enter into the enquiry, it can lose power by the way that power is exercised. There is no clear distinction between jurisdictional and non-jurisdictional errors. This allows the courts to intervene even where parliament intended to oust the jurisdiction of the courts and intended the tribunal's or authority's decision to be final. However, it results in an unpredictability of intervention exposing judges to criticisms of political bias; e.g. Denning's widely criticised judgement in Bromley v GLC
A new approach (GCHQ)1984
In this case, Lord Diplock simplified the grounds on which decisions might be subject to judicial review into the following three categories:-
This includes when courts make sure that decisions are used for a proper purpose and not for an improper purpose and made only after taking into account all relevant considerations and not irrelevant ones. The public authority’s power must be exercised by taking into account the merits of the case and without applying fixed rigid policies and must be exercised in good faith and not in bad faith.
This is when a power must be exercised reasonably and not unreasonably.
The courts must make sure that the public authority’s decisions are made by the person to whom it was delegated and not by another. The process of decision-making must be in accordance with express procedures dictated by the statute or in accordance with procedures implied by the courts. This is regulating whether it was am improper process. In the GCHQ case, these categories were not intended to be exhaustive and Lord Diplock himself acknowledged the possibility of proportionality. However, this approach has been widely adopted.
Conclusion
It is a major concern for many that the knocking away of the doctrine of ultra vires is excluding a vital “constitutional underpinning” is as detrimental to the justice system as “undermining the basis of judicial review”. Another argument for the ultra vires doctrine is that legislative intention to judicial review should not be absolutely excluded because it would then be considered an affront to Parliamentary sovereignty.
Part 54.1(2) Civil Procedure Rules (CPR)
Wade and Forsyth, ‘Administrative Law’ (7th ed. 1994) p. 41
Lord Woolf of Barnes, ‘Droit Public-English Style’ [1995] Public Law 543
Sir John Laws, ‘Illegality: the problem of jurisdiction’ in Supperstone and Goudie (eds) Judicial Review (1992) 67
Council of Civil Service Unions v. Ministers for the Civil Service [1985] AC 374 (the GCHQ case)
Vine v. The National Dock Labour Board (1957) AC 488 HL
Christopher Forsyth ‘Judicial Review and the Constitution’ [2000] p. 30