Administrative Law - Ultra Vires PDF

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A clear cut summary explaining the Ultra Viress with important academic commentary and essential cases to get extra marks...

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The Doctrine of Ultra Vires: This is the legal basis for challenging decisions made by administrative bodies acting outside their conferred powers. The UV doctrine requires that in the public body excercicising powers, the public body may not go beyong the limits (vires_ fixed, explicitly or implicitly, by the empowering statute. Up until the 1980s, it was generally acceptate in the common law world that the constiutional foundation for judicial review was (apart from error of law on the face of the record) the ultra vires doctrine. Although the high court has an inherent jurisdiction to supervise the activities of inferior courts, tribunals and other public authorities, the ultra vires doctrine means that this power of review may only be excercised in circumstances where the inferior body has exceeded its jurisdiction. A finding of UV is a prerquisite to judicial intervention by means of judicial review. The primary purpose of administrative law is to keep the powers of the government within their legal bounds. Ultra vires is a latin phrase which simply means “beyond powers”. However, the courts, with the view of curtailing abuse of power by administrative authorities and providing relief for the parties thereby affected, hav developed UV as a firm doctrine of law, by extending and refining its scope to embrace various types of abuse of power committed by administrative authorities. Although the decision makers have some amount of discretion, they remain subject to the control of the courts. This is to ensure that decision makers cannot make ‘unreasonable decisions or ‘dispropriate’ decisions. Ultra vires in the narrow sense no longer plays such a central role in the overall structure of judicial review. It was established in the case of R v Panel of Takeovers and Mergers, ex p Datafin [1987] that ‘Express powers conferred on inferior tribunals were of critical importance in the early days when the sole or main ground for intervention by the courts was that the inferior tribunal had exceeded its powers. But those days are long past’. Elliot argues the ultra vires rule remains a helpful concept in analysing the role of public law. Beatson 1984 described the principle as a powerful constitutional justification for judicial control and a useful organising principle of a coherent subject. However, he accepted that it is being strained by the deliberate manipulation of the principle by the judiciary in order to achieve what they perceive to be the desirable level of intervention. Lawful Authority: Within the power conferred by the statute, the case of Eastern Health Board v Farrell [2001] IESC, the respondent coroner was investigating the death of a young man with cerebral palsy. The applicant sought to restrain the coroner from investigating whether the death was linked to a vaccine administered in the man’s youth, in order to discover whether it was this

which may have cause his mental handicap, without which he would never have suffered the fatal illnes. The key provision was s.30 of the Coroners Act 1962, which limits a coroner to “to ascertaining the identity of the person in relation to whose ddeath the inquest is being held and how, when and where the death occurred”/ the q was: did the administration of the vaccine pertain “how the death occurred?” Keane CJ rejected the possibility of such a wide ranging inquest as “wholy at odds with the general policy underying the legislation, as reflected in the definition of the circumstances in which a coroner is obliged or entitled to hold an inquest, the restrictions on his powers to summon medical witnesses and the limited financial resources abailable to him in conducting the inquest.” In regards to implied powers, the case of AG v Great Eastern Railway Co, the House of Lords affirmed the principle laid down in Ashbury Railway Carriage and Iron Company Ltd v. Riche but held that the doctrine of ultra vires “ought to be reasonable, and not unreasonable understood and applied and whatever may fairly be regarded asincidental to, or consequential upon, those things which the legislature has authorized, ought not to be held, by judicial construction, to be ultra vires.” Lord Selbourne LC held that ‘whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires’ After the case of Attorney General v. Great Eastern Railway Co.6 a company incorporated under the company Act has power to carry out the objects set out I the objects clause of its memorandum and also everything that is reasonably necessary to enable it to carry out those objects. Correct Authority – Delegatus Principle: The general principle here is that a power must be excercised by the authority ((delegatus) in which it has been vested by the legislature. It cannot be transferred (delegare) to any other person or body. The discretionary power must be exercised by the authority on which it has been conferred. An exception to this principle concerns the relationship between Ministers and civil servants. A straightforward example is lawlor v flood. In this case, the chair of a tribunal inquiry had ordered the applicant to answer in private session questions posed by counsel for the Tribunal. However, the governing legislation only provided for the examination of witnesses by the Tribunal itself, and thus the power could not be delegated to counsel for the Tribuna; “when it comes to the formal exercise by the Tribunal of its powers to examine witness this must be done by the Tribunal itself and must be done in public.” The maximin may apply to all types of fecisions. However, the nature of the decision is undoubtedly one of the factors conditioning whether the rule

applies in any particular situation. In Flanagan v UCD, a university committee of disciplin, in which the duty of disciplining student had been vested, took action solely on the recommendation of an independent expert from another instiution from whom it had commissioned a report on an aleged case of plagarism. This amounted Barron J held, to an improper delegation of its function by the committee of discipline. What is striking is that Barron J appeared to suggest that if the student had given her “informed consent” to the committee’s total reliance on the opinion of the independent expert, then the delegation would have been proper. This appears to be the first suggestion that the delegatus principle may be waived. In its favour is the fact that, in an appropriate case, it appears to meet the justice of the situation. As against this, however, it may be argued that the delegatus principle is supposed to be a bulwark of good public administration, having wider implications that its effects upon any particular individual. Perhaps it shows up how little considered this area of the law. More recently, in Dunne v Donohoe, was s.4(b) of the Firearms Act 1925, which provides that a Garda superintendent must, before granting a firearms certificate, be satisfied that the applicant “can be permitted to have in his possession, use, and carry a firearm or ammunition without danger to the public safety or to the peace”/ the Garda Commissioner had introduced a Directive, binding on all superintendents, to the effect that certificaes in respect of shotguns and refles up to .22 caliber should not be issued unless the applicant had a “properly constructed and locked firearms cabinet”. Interalia, the SC held that power had been conferred on a Garda superintendent as a persona designata who accordingly could not “be required to exercise it in any particular manner by any other body or authority”. While on a purely legal plain, the rsult of this case was plainly correct; on the level of good policy, there may be more to be said, however. The decision in Genmark Pharma v Minister for Health [1998] 3 IR 11 partly concerned the ability of a Minister to take a decision based on expert advise. The body at issue was the National Drugs Advisory Board which advised the respondent minister on, amongst other things, applications for products authorisations for medicinal products. Under the regulations, the minister could refuse an application if, inter alia, “the therapeutic efficacy of the preparation is lacking or is insufficiently substantiated by the applicant..”. Here, the board engaged in substantial corresspondent with the applicant before recommending rejection of the application. Some of this correspondence had been sent to the minister by the applicant but no opportunity to rebut the findings of the Board have been provided. The Board’s recommendation was eventually affirmed by the Minister, who simply stated that he had refused the application. In the case of Carltona v Commissioner of Works, there was a statutory requisitioning of a factory that was sub-delegated. The issue before the court was whether this delegation and therefoe the requisitioning, unlawful? The

court rejected this and found that the functions given to ministers are so multifarious that no minister could ever personally attend to them. Consequently, the duties and powers conferred upon ministers are normally exercised under their authority by responsible officials of the relevant department of state. However, constitutionally, the decision of such officials is the decision of the minister for which the minister is accountable to Parliament. As Lord Greene indicated in Carltona: “The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them.” Further this was confirmed by the SC in a deportation case, Tang v Minister for Justice. Here, a senior official refused to grant Hong Kong immigrants who breached the terms of their entry conditions permission to reside in the state. The official had responsibility for the immigration and citizenship section in the Department of Justice and acted in the name of the Minister when making the decision: the minister was not, however, consulted about the decision. The SC was not impressed by the argument that this decision ought to have been made by the Minister personally. Hamilton CJ explicitly endorsed the Carltona doctrine and added” having regard to the extensive powers conferred on the minister.. it cannot be supposed that it was the intention of the legislature that the minister personally should exercise these powers. Tang was further reinforced by the SC’s decision in Devaney v District Judge Shields. Here the issue was whether the minister was personally obliged to consider the appointment of each district court clerk having regard to the provisions of s.46(2) of th Court Officers Act 1926. In the HC, McCracken J held that the purported appointment of a district court clerk by a civil servant was invalid, as the Carltona principle had no application to such appointments. The clerks had important statutory responsibilities, held office at the will of the minister and there were relatively few such appointments. In these circumstances, it was – in contrast to the situation in Tang “perfectly practical” for the Minister personally to appoint such clerks. This decision was reversed on appeal by the Supreme Court which unanimously affirmed the general applicability of the Carltona principle. Hamilton CJ stressed the comparative importance of such an appointment compared to the decision in Tang: “the appointment of a district clerk, is no doubt an important matter. But it is not more important than many of the decisions which fall to be made by civil servants, in the name of the minister.” Denham J also stressed the general applicability of the Carltona doctrine, while conceding that “there are exceptions in matters of significant importance whether the minister is expected to make the decision personally.” Keane J emphasised the particular fact that the Minister’s task was the purely formal one of appointing the candidate who had been selected by the Civil Service Commission so that it must be presumed that the Oireachtas didn’t intend that he must be personally make each appointment. It would seem, therefore,t hat while the

principle os one of general application, its scope depends in the last analysis on statutory interpretation. Consistent trend in the case law shows a growing endorsement of the Carltona principle. In ESB v Kilross Properties Ltd [2016] the issue of whether or not there was a lawful delegation was a matter of statutory interpretation – Carltona does not apply. As this was a statutory entity and the statute identified who was to exercise the discretion. ESB not free to delegate all its statutory power as it is a statutory body. Wade and Forsyth claim that having no written constitution on which he can fall back, the judge must in every case be able to demonstrate that he is carrying out the will of Parliament as expressed in the statute conferring the power. He is on safe ground only where he can show that the offending act is outside the power. The only way in which he can do this, in the absence of an express provision, is by finding an implied term or condition in the Act, violation of which then entails the condemnation of ultra vires. Ultra Vires and the Role of the Courts: Wade and Forsyth believe that the technique by which the courts have extended the judicial control of powers is that of stretching the doctrine of ultra vires […] They can readily find implied limitations in Acts of Parliament, as they do when they hold that the exercise of a statutory power to revoke a license is void unless done in accordance with the principles of natural justice. For this purpose they have only one weapon, the doctrine of ultra vires The principles of judicial review are, categorically, judicial creations. They owe neither their existence nor their acceptance to the will of the legislature. They have nothing to do with the intention of Parliament, save as a fig leaf to cover their true origins. We do not need the fig leaf any more.” Smith and Brazier believed that, to a large extent judicial review of administrative action is a specialised branch of statutory interpretation” Jurisdictional Error: The concept of jurisdictional error still has a significant role to play. The question of which errors affect jurisdiction has impacted the level of supervisory control, which the courts can exercise, but the distinction between errors, which affect jurisdiction, and those, which do not, has been gradually eroded in recent years.

Jurisdictional error v non-jurisdictional error distinct was justified in the balancing the interests of the public in preventing body acting in an arbitrary fashion against their interest in obtaining a final distinction. Also, it takes into account to expertise that tribunals have, in particular. Traditionally, there was a distinction drawn between jurisdictional errors, which could be quashed in judicial review, and errors within jurisdiction, which could not be impugned unless they appeared on the face of the record. Originally it was held that if a tribunal had the jurisdiction to deal with a matter, any error committed by it in deciding this question was irrelevant, e.g. an error of fact Pure Jurisdicion Doctrine: This theory held sway from the first half of the 19th century until relatively recently. The crucial feature of this theory is that jurisdiction is determined at the “commencement, not at the conclusion of, the inquiry”. If an administrative authority or lower court has “subject-matter” or “original” jurisdiction, it does not lose such jurisdiction even if there is no evidence to support its findings of fact. This was decided by a very strong Divisional court in R (Martin) v Mahoney where it was held that a conviction under s.1 of the Betting House Act 1853 which was (admittedly) based on insufficient evidence could not be quashed on certiorari, since the absence of sufficient evidence did not affect the jurisdiction of the convicting magistrate. It was held that “…the contention that mere want of evidence to authorise a conviction creates a cesser of jurisdiction involves the unwarrantable proposition that a magistrate has… jurisdiction only to go right.” Indeed the emphasis on the original jurisdiction theory in Mahoney’s case appears to have been so influential that even today many judges are reluctant to classify an error made in the course of excercising jurisdiction as one which destroys that jurisdiction. Conditions Precedent to Jurisdiction: ENGLISH APPROACH: One method of escaping the confines of the pure jurisdiction doctrine was to classify certain findings as “collateral” or as “conditions precedent to jurisdiction”. Administrative authorities do not possess an inherent jurisdiction, sometimes their jurisdiction depends on factual preconditions, laid down in legislation, which must have an objective existence before the authority has power to act. Hence, any decision of the authority as to the boundaries of its jurisdiction could not be conclusive, as otherwise it would usurp power never conferred on it by the Oireachtas. If a condition is held to be precedent to jurisdiction, the HC has a wide ranging power to inquire into

its existence. This provides the dissatisfied applicant with a powerful weapon in judicial review proceedings. . To get around this rule, in Bunbury v Fuller, the courts treated certain factors as conditions precedent to jurisdiction. No court or tribunal of limited jurisdiction could confer original jurisdiction on itself by making an incorrect decision on a collateral issue where jurisdiction depended on a collateral issue. Some of the residual uncertainty in this area was dispelled by the decision of the House of Lords in R. v Hull University Visitor, ex p. Page [1993] AC 682 where Lord Browne-Wilkinson concluded that ‘any error of law made by an administrative tribunal or inferior court in reaching its decision can be quashed for error of law.’ These cases have been presented as straightforward applications of “conditions precedent” doctrine. However, many if not all of them could have been decided the other way. This illustrates the fact that the basic difficulty is that the concept of “collateral fact” is a malleable one – virtually any fact may be classified as “collateral” to jurisdiction. Parpworth explains, The House of Lords in Mercury Communications Ltd v D.G of Telecommunications took a relaxed approach to the rule in O'Reilly because of the need for flexibility rather than compartmentalizing cases as either public or private law matters. The breakthrough that Anisminic made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, i.e. one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported "determination", not being a "determination" within the meaning of the empowering legislation, was accordingly a nullity. The Anisminic Revolution: The case of Anisminic v Foreign Compensation Commission sets a new standard in the area of judicial review. In this a tribunal decided that the appellants wre not eligible for compensations under the Foreign Compensation Act 1950 for particular properties because their “successors in title” dd nit have the British nationality as required. The question was even if the tribunal had made an error of law, the HOL had to decide whether or not an appellate court had to jurisdiction to intervene in the tribunal’s decision. Section 4(4) of the Foreign Compensation Act 1950 stated that:"The determination by the commission of any application made to them under this Act shall not be called into question in any court of law".This was a so-called "ouster clause". By a 3-2 majority, the House of Lords decided that section 4(4) of the Foreign Compensation Act did not preclude the court from inquiring whether or not the order of the tribunal was a nullity, and

accordingly it decided that the tribunal had misconstrued...