Thus this would precisely be the reason; the judiciary would derive its power from the rule of law to ensure that there is a check and balance between the two organs of government.
Public authorities may appear in courts for reasons where; for instance, many enforcement powers rested in the public authorities (for examples, to abate nuisance) are exercisable only with the leave of the court or magistrate; and in most of these situations the prospective victim can be heard on his own behalf.
The starting point for judicial review of administrative action is that public authorities will be restrained from exceeding their powers (acting ultra vires) and inferior tribunals will be prevented from exceeding the limits of their jurisdiction. This important constitutional function of containing both the Executive and inferior tribunals within the limits of their authority has long been exercised by the courts. In the seventeenth century it was established that the Crown could not set itself above the law by a bare assertion of prerogative. Today, the ultra vires doctrine prevents public authorities from doing anything the law forbids, or taking action for which they have no statutory authority.
The term “Ultra vires” was first generally used to denote excess of legal authority by independent statutory bodies and railway companies in the middle years of nineteenth century, though the main features to the doctrine to which this name was given had already been taking shape over a long period in relation to the powers of common law corporations. The term came to be used in relation to municipal corporations, then to the other new types of local government authorities, and finally to the Crown and its servants and even to inferior judicial bodies.
The House Of Lords has laid down the principle that “whatever may fairly be regarded as incidental to, or consequent upon, these things which the Legislature has authorised, ought not (unless expressly prohibited) to be held by judicial construction to be ultra vires” This principle has been applicable to the statutory powers of all the public bodies, and a high proportion of the reported cases involving the vires of administrative action have been concerned with the question whether a transaction is to be regarded as reasonably incidental to the exercise of statutory powers expressly conferred.
A public authority may exceed its powers by exercising them in an incorrect form or by adopting an improper procedure as well as by going wrong on a matter of substance.
Substantive ultra vires may relate to matters of law and fact or to matters of discretion. Discretionary powers must be exercised for the purposes for which they were granted; relevant considerations must be taken into account and irrelevant considerations disregarded; they must be exercised in good faith and not arbitrarily or capriciously. If the holder of the power fails to comply with those requirements it acts ultra vires.
The law relating to the effect of failure to comply with procedural requirement resembles an inextricable tangle of loose ends. Although it would be futile to attempt to unravel or cut all the knots, it is possible to state the main principles of interpretation that the courts have followed and to illustrate their application in a few settings.
When Parliament prescribes the manner or form in which a duty is to be performed or a power exercised, it seldom lays down what will be the legal consequences of failure to observe its prescriptions. The courts must therefore formulate their own criteria for determining whether the procedural rules are to be regarded as mandatory, in which case disobedience will render void or voidable what has been done, or as directory, in which case disobedience will be treated as an irregularity not effecting the validity of what has been done.
Judges have often stressed the impracticability of specifying exact rules for the assignment of a procedural provision to the appropriate category. The whole scope and purpose of the enactment must be considered, and one must assess, “the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act.”
The case that would be used for our analysis would be Ridge v Baldwin And Others . The Municipal Corporations Act 1882 provided by Section 191:
“(4) The Watch Committee……may at any time dismiss, any borough constable whom they think negligent in the discharge of his duty, or otherwise unfit of the same”.
The Police Act 1919 provided by Section 4(1);
“It shall be lawful for the secretary of state to make regulations as to the….conditions of service of members of all police forces within England and Wales, and every police authority shall comply with the regulations so made”.
It was accepted by the courts that the 1919 Act did not impliedly repeal the relevant provisions of the 1882 Act. The relevant regulations contained detailed provisions as to the procedure to be followed where a report or allegations was received by the police authority from which it appeared that a chief constable might have committed an offence against the “Discipline Code” (set out in the regulations).
According to the regulations the detailed procedure, which involved a formal hearing before a specially constituted tribunal, could only be dispersed with if the Chief Constable admitted that he had committed an offence against the code.
Charles Ridge was appointed Chief Constable of the County Borough of Brighton in 1956. The appointment was “subject to the Police Act and Regulations”. In 1957, Ridge, two police officers and two others were indicted for conspiracy to obstruct the course of justice between 1949 and 1957. Ridge was acquitted, but the other two police officers were convicted. The Watch Committee, purporting to act under section 191(4) of the 1882 Act summarily dismissed Ridge on the ground that in their opinion he had been negligent in the discharge of his duty, and was unfit for the same.
He was given neither any notice of the meeting, nor he was given any opportunity to make representations. The regulations were in no way operated.
Ridge then brought an action in the High Court for a declaration that the dismissal was illegal, ultra vires and void, and for damages. His main purpose was to obtain the opportunity to resign voluntarily, his pension rights thus being preserved.
Before we carry on looking into the judgement of L.Reid, it would be worthwhile to look into the importance of adhering to procedural and formal requirement.
In assessing the importance of the provision, particular regard may be had to its significance as a protection of individual rights, the relative value that is normally attached to the rights that may be adversely affected by the decision and the importance of the procedural requirement in the overall administrative scheme established by the statute.
Lord Reid in dealing with the dismissal of Ridge, classified the cases of dismissal into three parts. The first being dismissal of a servant by his master; second, dismissal from an office held during pleasure and; thirdly, dismissal from an office where there must be something against a man to warrant his dismissal.
The present case falls within the third class. He says that the question that ought to have been considered by the watch committee – reinstating the appellant as chief constable, dismissing him, or requiring him to resign. The difference between the latter two is that dismissal involved forfeiture of pension rights, whereas requiring him to resign did not. Indeed, it is now clear that the appellant’s real interest in this appeal is to try to save his pension rights.
Some classes of procedural requirements are so important that they will nearly always be held mandatory. For example, an administrative authority which fails to comply with a statutory duty to give prior notice or hold a hearing or make due inquiry or consider objections in the course of exercising discretionary powers affecting individual rights will seldom find the courts casting an indulgent eye upon its omission. Non-compliance or inadequate compliance with an express duty to give particulars of rights of appeal may render an administrative determination invalid.
The practical effects of the exercise of a power upon the rights of individuals will often determine whether the relevant formal and procedural rules are to be classified as mandatory or directory. Thus, where powers are conferred on specified persons to issue orders or certificates that affect civil liberties or rights to compensation, the courts may insist that the powers be exercised only by the persons designated, who must genuinely apply their minds to the matter, and must closely observe all material requirements as to form.
After going through a list of cases dealing with dismissals, Lord Reid went on to say that the most important thing that a judge should consider in cases like this is how an individual should be treated. He says that there is no doubt that policy would play some part in the decision but it might also be involved in sentencing.
Lord Woolf, in his article, “Judicial Review – The Tensions Between The Executive And Judiciary” says that the approach of allowing the judiciary to have a say on the actions of the executive does have disadvantages. “One is that, if the judge concentrate on the trees, he can lose sight of the horizon of the landscape in which they grow. The advantage of a judge being invited to give a lecture or write an article is that it causes him to raise his sights and view the subject from a wider perspective than when deciding individual cases. It is on this wider perspective that I will concentrate in doing so. I will approach my subjects by what may appear a circuitous route”.
He says, “I will have no doubt that there is and has been, particularly over the last five years, tension between the judiciary and the executive, and that the tension has from time to time increased as a result of the decisions of judges on application for judicial review. I, however, do not regard this as a matter of concern. It is no more than an indication that judicial review has been working well during a period when the other restraints on the executive were not as great as ideally they should be”.
Here, Lord Woolfe goes on to describe a situation where it is felt that the judiciary should intervene in the working of the executive. He says, “It was a period during which both local government and the opposition to the executive in Parliament was weak and when power had become increasingly centralised. It was also a period of frenetic activity by the government of the day. The Government was taking policy decision after decision, which had significant implications for the justice system and the vulnerable section of the community whose only source of protection are the courts. Examples are provided by the decisions adversely affecting prisoners and asylum seekers.
Thus judicial review presents a constitutional paradox, representing, on the one hand, a check on the executive – arguably infringing the doctrine of separation of powers – and on the other hand, keeping the executive within its legal powers thus putting the sovereignty of Parliament and rule of law aside. Public press and criticism of the judiciary’s role in keeping the executive under check led the former Lord Chief Justice, Lord Taylor of Gosforth, publicly defending the role of judges by saying;
“…..nothing could be further from the truth. Indeed their (the judges’) aim and function is quite the reverse. It is to ensure that powers are exercised by those to whom Parliament has given them and in the way in which Parliament has specified”
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