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Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review

Published online by Cambridge University Press:  16 January 2009

Christopher Forsyth
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Extract

The doctrine of ultra vires has been aptly described by Sir William Wade as “the central principle of administrative law” but in recent years it has been subjected to criticism. First the academics weighed in and, increasingly, eminent judges speaking or writing extra-judicially have described the doctrine as a “fairy tale” or a “fig leaf” and declared its redundancy and lack of utility.

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The Cambridge Law Journal , Volume 55 , Issue 1 , March 1996 , pp. 122 - 140
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Copyright © Cambridge Law Journal and Contributors 1996

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References

1 Wade, & Forsyth, , Administrative Law (7th ed. 1994), p. 41.Google Scholar The present writer is the co-author with Sir William Wade of the 7th ed. of this book, but he has no desire to assume any credit for passages which, although they appear in the 7th ed., are substantially unchanged from earlier editions.

2 Oliver, Dawn, “Is the ultra vires rule the basis of judicial review?”, [1987] Public Law 543; Craig, Administrative Law (3rd ed., 1994), pp. 12–17.Google Scholar

3 Lord Woolf of Barnes “Droit Public—English Style” [1995] Public Law 57 at 66 adopting the phrase coined by Lord Reid (“The Judge as Lawmaker” [1972] The Journal of Public Teachers of Law 22) to describe those who denied the judiciary any law making role.

4 This metaphor was first used in print by Sir John Laws in “Illegality: the problem of jurisdiction” in Supperstone & Goudie (eds), Judicial Review (1992) at p. 67. It has since been used many times.Google Scholar

5 [1993] A.C. 682. Sir John Laws argues in “The power of the public law court: who defines it?” (an unpublished paper delivered at Queen Mary College in 1995) (at p. 22) that because Lord Browne-Wilkinson refers elsewhere (at 702F) to a body acting ultra vires “if it reaches its conclusion on a basis erroneous under the general law” his view of ultra vires is not orthodox. But when Lord Browne-Wilkinson's dicta on ultra vires are read as a whole it seems undeniable that he has the orthodox view in mind.

6 Lord Browne-Wilkinson recognises one qualification to this statement: the power to quash for of law on the face of the record which does not depend upon ultra vires. A further area of judicial review which does not depend upon ultra vires concerns non-statutory bodies which do not exercise legal powers (discussed below in Section II).

7 See the speech of Lord Browne-Wilkinson at 701C-G, 702F-G citing Wade's views with approval.

8 See Wade & Forsyth, op. cit. pp. 659–667 for a review of this development. The limits and constitutional implications of this extension of judicial review have yet to be worked out.

9 See R. v. Panel on Take-overs and Mergers ex pane Datafin [1987] Q.B. 815 discussed in Wade & Forsyth, op. cit., pp. 662–663.Google Scholar The Court of Appeal recognised that the Panel wields “immense de facto power” governing company take-overs and mergers “without visible means of legal support” and, hence, held that it should act “in defence of the citizenry” and grant judicial review in appropriate cases to prevent abuse of those powers. The quotations come from the judgment of Sir John Donaldson M.R.

10 Craig, Administrative Law (3rd ed.), pp. 222–225 and, in more detail, “Constitutions, Property and Regulation.” [1991] Public Law 538.Google Scholar

11 1 Harg L.Tr., 78 (1787).

12 (1810) 12 East 527, and see the several other nineteenth century cases following this principle (primarily Corporation of Stamford v. Pawlett (1830) 1 C. & J. 57).

13 [1966] 2 Q.B. 633 approved in several later decisions (Endersby Town Football Club Ltdv. Football Association Ltd [1971] Ch. 591 and Mclnnes v. Onslow-Fane [1978]1 W.L.R. 1520).

14 The problem of procedural exclusivity may arise but it is not intended to discuss it in detail here (see Wade & Forsyth, op.cit., pp. 680ff). The form of action in Nagle v. Fielden was a writ action but ex pane Datafin was an application for judicial review in terms of R.S.C. Order 53. It is submitted that once the common law principle of the control of monopolies is recognised, then it should make no difference whether that principle is vindicated by action or by judicial reviewprovided that the form of proceedings chosen is otherwise appropriate.

15 (1608) 7 Co. Rep. la, 28a.

16 Lord Woolf of Barnes, “Droit Public-English Style” [1995] Public Law 57 at 64.

17 Wade & Forsyth, op. cit., pp. 306–307.

18 Wade & Forsyth, op. cit., p. 307.

19 As we shall see some critics launch both “weak” and “strong” criticisms at the doctrine, but we are concerned with the criticisms not the critics.

20 “Law and Democracy” [1995] Public Law 72 at 79.

21 [1995] Public Law 57 at 69.

22 [1995] Public Law 72 at 81–93Google Scholar.

23 See Baxter, Lawrence, Administrative Law (Juta & Co, 1984), pp. 307–312Google Scholar dealing with andalternative views (primarily) those of Taitz, Wiechers and Rose-Innes). These writers concerned that a narrow concept of ultra vires, based on a literalist construction of statutory, would unduly restrict judicial review. But as Baxter remarks “[t]he courts cannot hope toaway with modifying the content of the legislation of a sovereign Parliament … without a proper theoretical justification—which requires Parliament's imprimatur through the fiction of” (p. 312 n56).

24 1988(4) S.A. 83O(A). There was one earlier case which has also abandoned ultra vires (also with disastrous results): Lipschitz v. Wattrus.NO 1980(1) S.A. 662(T).

25 The Constitution of the Republic of South Africa 1993, section 24, however, now provides that “Every person shall have the right to … lawful administrative action where any of his or her rights or interests is affected or threatened”. Since the constitution is the supreme law (section 4), prevents an ouster clause being effective through the application of United Democratic Front reasoning.

26 This is not an easy task since all the judgments are written in Afrikaans. Criticism in English,, is readily available. See, inter alia,Haysom, N. and Plasket, C., “The War Against Law: Judicial Activism and the Appellate Division” (1988) 4 South African Journal on Human Rights 303; E. Mureinik "Pursuing Principle: the Appellate Division and Review under the State of Emergency” (1989)5 S.A.J.H.R. 60 and Grogan (1989)106 S.A.L.J. 14.CrossRefGoogle Scholar

27 There were similar arguments about the concept of “security action” but it would burden unnecessarily this article to go into them here.

28 In brief the argument was the following: Regulation 1(1) defined “unrest” as “any activity or” which “a reasonable bystander” would consider a prohibited gathering (i.e. prohibited under other regulations), a physical attack on a member of the security forces or conduct which constituted a riot or public violence. The difficulty which the court at first instance had with this definition was whether it meant that a bystander in possession of more knowledge than the reasonable bystander could publish information about an incident with impunity? For instance, if a bystander knew that the particular gathering had been prohibited but that was not widely known (and so not known to the reasonable bystander), could that information about that gathering be freely published? This is a somewhat simplified definition of the concept of “unrest”. For the detail see 1987(3) S.A. 296(N) at 318H–319F.

29 Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147. For the detail, see Wade, and Forsyth, , op. cit. pp. 734–739Google Scholar. Similar principles apply to ouster clauses in South African law: Minister of Law and Order v. Hurley 1986(3) S.A. 568 (A).

30 There was a separate concurring judgment by Hefer J.A. (discussed below). Van Heerden J.A., upholding the traditional approach to ultra vires.

31 At 853F-G.

32 At 855F-H. An alternative translation for “artificial and false” is “forced and impure”.

33 Following Staatspresident v. U.D.F. it has been confirmed that an ouster clause prevents judicial review on the ground of vagueness (Catholic Bishops Publishing Co. v. State President 1990(1) S.A. 849 (A)); and in Natal Indian Congress v. State President 1989(3) S.A. 588 (N) an ouster clause successfully prevented review on the ground of Kruse v. Johnson [1898] 2 Q.B. 91 unreasonableness.

34 Administrative Law (5th ed.), p. 40; a very similar passage occurs in the 7th ed. at p. 41. The judge also relies on Craig's account and criticism of the doctrine in Administrative Law (2nd ed.).

35 At 867G, 868.

36 Sir John Laws, it is believed, is the only one of the “weak” critics to discuss the position of ouster clauses (in Supperstone & Goudie, Judicial Review, pp. 61ff). But he only does so in the context of voidness, arguing that ouster clauses may be effective even in the absence of voidness, the true question being in each case whether Parliament intended the body protected by an ouster clause to have the power to make final determinations of questions of law. This is, of course, entirely consistent with the doctrine of ultra vires.

37 [1969] A.C. 147.

38 Under the current ouster clause (Foreign Compensation Act 1969, section 3) it is specifically provided that challenging a determination on the “ground that it is contrary to natural justice” shall not be precluded by the clause (section 3(10)).

39 See, to give but one example, Town and Country Planning Act 1990, ss. 284–288 for the current legislation in planning matters. For compulsory purchase see the Acquisition of Land Act 1981, s. 25.

40 Acquisition of Land Act 1981, s. 25.

41 See, Wade, & Forsyth, , op. cit., pp. 745–748Google Scholar discussing particularly Smith v. East Elloe Rural District Council [1956] A.C. 736 and R. v. Secretary of State for the Environment ex parte Ostler [1977] Q.B. 122.

42 This is the formula used in the Housing Act 1930, s. 11.

43 [1956] A.C. 736.

44 Wade, & Forsyth, , op. cit., pp. 751–752Google Scholar.

45 See McEldowney v. Forde [1971] A.C. 632 per Lord Diplock at 665B, “A regulation whose meaning is so vague that it cannot be ascertained with reasonable certainty cannot fall within the words of delegation”. Admittedly Lord Diplock was here dissenting but Lord Hodson for the majority is to similar effect (643F).

46 There is no ouster clause so no question of it being effective to prevent the operation of judicial review.

47 Hohfeld, W., Fundamental Legal Conceptions (1923)Google Scholar. The words in bold in what follows refer to Hohfeldian concepts.

48 The legislature, to its credit, however, rarely intervened and when it did generally acted in a constructive way. See, for instance, the Tribunals and Inquiries Act 1992 (discussed in Wade & Forsyth, op. cit., pp. 920ff) and the Supreme Court Act 1981, s. 31. Cf. War Damage Act 1965, s. 1 and see Zellick, G. [1985]Google ScholarPublic Law 283 especially 290. See also, Cranston, R., “Reviewing Judicial Review” in Richardson, G. and Genn, H., Administrative Law and Government Action (OUP, 1994) at pp. 69–75Google Scholar.

49 [1993] A.C. 682 at 701C–G. And see also R. v. The Home Secretary, ex parte Doody [1994] 1 A.C. 531 where Lord Mustill said “where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner that is fair in all the circumstances … The standards of fairness are not immutable …” (at 540).

50 [1995] Public Law 72 at 79.

51 An apt phrase first used by Cotterell, Roger in “Judicial Review and Legal Theory” in Administrative Law and Government Action (1994) edited by Richardson, Genevra and Genn, Hazel at p. 16Google Scholar.

52 Laws, “Law and Democracy” [1995] Public Law 72 at 86. The other influence on Sir John is Sir William Wade's article “The Legal Basis of Sovereignty” [1955] C.L.J. 172 which Sir John uses to establish that Parliamentary Sovereignty is vouchsafed not by legislation but by the courts. As Wade says, the rule that Acts of Parliament have the force of law “is unique in being unchangeable by Parliament—it is changed by revolution, not by legislation; it lies in the keeping of the courts, and no Act of Parliament can take it from them … [l]t is always for the courts to say what is a valid Act of Parliament; and … the decision of this question is not determined by any rule of law which can be laid down or altered by any authority outside the courts. It is simply a political fact.” But there is no suggestion here that the courts are justified (as Sir John would have us believe) in imposing substantive limits on Parliamentary enactments in accordance with the judicial estimation of the severity with which Parliament intrudes upon fundamental rights. The “ultimate legal principle” that is unchangeable by Parliament is a formal not a substantive principle, viz., that properly enacted statutes, whatever their content, will be obeyed by the courts.

53 OUP, 1949. An intriguing book. It is in fact a reprint in exact facsimile form of an essay first published in Hancock, W.K., Survey of British Commonwealth Affairs. Volume 1 Problems of Nationality 1918–1936 (OUP, 1937). For this reason, the first page of the essay is p. 510Google Scholar.

54 It is not intended to provide here a full account of the debate over the Sovereignty of Parliament. But the following point may be made: in certain circumstances EU legislation prevails over later Parliamentary legislation (see Wade, & Forsyth, , op. cit. pp. 30–31Google Scholar; R. v. Secretary of State for Transport ex parte Factortame Ltd. (No.2) [1990] 1 A.C. 603); but this is the result (and only the result) of the enactment of the European Communities Act 1972, s. 2(4). This, it is submitted, does not show the curtailment of sovereignty but its strength. For so long as Parliament retains the power (as a matter of legal principle rather than political reality) to repeal the 1972 Act, Parliament remains sovereign.

55 At p. 523. Elsewhere he makes the same point more colourfully: “ … the extraction of a precise expression of will from a multiplicity of human beings is … an artificial process and one which cannot be accomplished without arbitrary rules. It is, therefore, an incomplete statement to say that in a state such and such an assembly of human beings is sovereign. It can only be sovereign when acting in a certain way prescribed by law. At least some rudimentary manner and form is demanded of it: the simultaneous incoherent cry of a rabble, small or large, cannot be law, for it is unintelligible. The minimum would be rule prescribing some sort of majority—simple, plurality, absolute majority, unanimity or some arbitrary portion. …“ (1939 King's Counsel 152 cited at length in Heuston, R.F.V., Essays in Constitutional Law (1961, Stevens & Co), p. 8)Google Scholar.

56 Beinart, B., “Parliament and the Courts” [1954]Google ScholarButterworths SA Law Review 134 at 136/7. Beinart was referring to a particular example of such “Latham rules”—those contained in the South Africa Act 1909.

57 In Harris and others v. The Minister of the Interior and another 1951(2) S.A. 428 (A) by the Appellate Division of the Supreme Court of South Africa and by the Privy Council (on appeal from Ceylon) in Bribery Commissioner v. Ranasinghe [1965] A.C. 172.

58 Above.

59 At 468.

60 For the detail of how these constitutional rights were eventually lost see, Forsyth, C.F., In Danger for Their Talents: A Study of the Appellate Division of the Supreme Court of South Africa 1950–1980 (Juta & Co, 1985), pp. 61–74Google Scholar.

61 “Judges and Decision-makers: the Theory and Practice of Wednesbury Review” [1996] Public Law (forthcoming).

62 Wade, & Forsyth, , op. cil., p. viGoogle Scholar.