Public Law Theory Notes

Question 1

Ultra vires doctrine - Definition

Answer 1

> Wade (Wade & Forsyth, Administrative Law 1994):
-“The simple proposition that a public authority may not act outside of its powers”.

> Lord Browne-Wilkinson in Page:
-The fundamental principle [of JR] is that the courts will intervene to ensure that the powers of public decision-making bodies are exercised lawfully. In all cases… this intervention… is based on the proposition that such powers have been conferred on the decision-maker on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred, in accordance with fair procedure and, in a Wednesbury sense, reasonably.

Question 2

Ultra vires doctrine - Basis is Parliamentary sovereignty

Answer 2

> “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”.
-The quote is from the judgment of Lord Denning in the case of “R v. Secretary of State for the Home Department, ex parte Simms” (2000).
In the absence of express provision, he can find that an act is ultra vires by finding an implied term in the Act that is violated.

Question 3

Ultra vires doctrine - strengths

Answer 3

> Forsyth:

> It is the constitutional underpinning for the greater part of JR.
-To abandon it would undermine the basis of JR.
Any change will render JR less effective.
-Courts will find it more difficult to overcome ouster clauses.
To abandon the doctrine implies the abandonment of legislative supremacy. Such a profound change in the constitutional order should not be undertaken by the judiciary.
-Parliament intends there to be limits on the power it confers, and hence courts can legitimately articulate those limits.
-E.g. if government never intends there to be vague regulations, vague relations would be ultra vires & void.
-In the alternative scenario, if ultra vires doctrine is abandoned, and therefore Parl does not intend there to be any limits on the exercise of discretion, for the courts to impose such duties would set up the common law against the will of P.
-E.g. the regulations would be intra vires but nevertheless void because they are vague.
-Common law prohibition on unfair decisions conflicts with statutory power to make unfair decisions.

> Quote:
“The analytical difficulty is this: what an all powerful Parliament does not prohibit, it must authorise expressly or impliedly. Likewise if Parliament grants a power to a minister, that minister either acts within those powers or outside those powers. There is no grey are between authorisation and prohibition or between empowerment and the denial of power. Thus, if the making of the vague regulations is within the powers granted by a sovereign Parliament, on what basis may the courts challenge Parliament’s will and hold that the regulations are invalid? If Parliament has authorised vague regulations, those regulations cannot be challenged without challenging Parliament’s authority to authorise such regulations.”