Administrative Law: Doctrine of Ultra Vires and Common Law Theory - Essay Example

There are two approaches on the central principle of judicial review, one in support of the doctrine of ultra vires, while the other in favour of common law theory. Write an essay to discuss which approach is in your view more convincing. In order to determine which approach to judicial review is more convincing it is necessary to discuss the necessity for judicial review to be in existence. From this it will then be necessary to discuss how judicial can be achieved through the doctrine of ultra vires as well as through common law. This will involve examining the grounds for judicial review and, through case law, determining when the doctrine of ultra vires has been used as well as the common law theory. It should then be possible to reach a conclusion as to which approach is more convincing. Judicial review Judicial review is the method used for challenging an alleged misuse of power by a public body1. An application for judicial review can be brought by anyone who has been affected by the alleged misuse of power. In order for someone to seek a review they must be of the opinion that the public has acted ultra vires or in breach of the law of natural justice. This can be established by proving that the public body had done something for which it had no legal authority in statute or common law2. Problems occurred in the case of R (on the application of Heather) v Leonard Cheshire3 were the Court of Appeal held that the authority was not performing a public function when they made their decision, and therefore could not be subject to judicial review. Applicants for a judicial review must make an application to the High Courts for leave to be granted a judicial review. Applications must be made within 3 months from when the grievance occurred, and the applicant must have sufficient interest in a matter to which the legislation relates and it must be a public law issue. The courts have occasionally granted leave to appeal even if one of the conditions for review has not been satisfied4. Where the courts consider that the interest of the applicant is insufficient they can refuse to grant a remedy5. Before leave to appeal will be granted the courts have to be satisfied that the decision complained of was taken by a public body. In some instances the legislator can prevent the review of their decision through the utilisation of an ouster clause. Ouster clauses are rarely used and have only been allowed in cases were the legislation has been clearly worded6. There are 3 grounds under which judicial review can be sought. These are illegality, irrationality or procedural impropriety. The most common challenges under judicial review are categorised as procedural ultra vires and substantial ultra vires. Illegality When determining whether a judicial review can be granted on the grounds of illegality the court will consider whether the decision has been made for a proper purpose rather than an improper purpose. The courts would consider the purpose to be improper if the decision given does not ‘promote the policy and the objects of the Act’. In Padfield v Minster for Agriculture [1968]7 the court held that the policy and objects implied in the Agricultural Marketing Act 1958 was that the Minister was entitled to refer complaints to the committee in order to rectify defects in the machinery. By refusing to refer the complaint the Minister had acted ultra vires. A further case in which the court held that the Home Secretary had acted unlawfully was Congreve v Home Office [1976]8 in which the Home Secretary had initially allowed TV licence holders the right to renew licences a month in advance of the expiration of the old licence. Several people took advantage of this offer when it was announced that the licence would be increasing by £8 on the 1 April. The Home Office discovered that the plaintiffs had used this loophole to avoid paying the increase and attempted to revoke their licences if they refused to pay the extra £6. the court held that revocation would be an unlawful abuse of power, and that the overlapping licences had been granted lawfully. The court stated that the need to raise revenue was not a good enough reason to allow the revocation. The courts have also ruled decisions to be illegal in cases were the person making the decision has not taken all relevant considerations into account and discounted irrelevant considerations9. Illegality has also been asserted in cases were the merits of the case have not been considered and were the courts have stuck rigidly to policies10. A decision can also be illegal if the person making the decision has not acted in good faith11. Irrationality When considering whether a decision can be regarded as irrational the court will examine whether the power has been exercised reasonably. In some instances the decision given by a court in a particular case can be so absurd that no reasonable court would have ever come to such a conclusion. This was held to be the case in Associated Picture Houses Ltd v Wednesbury Corporation [1948]12. In this case Lord Greene MR stated that a decision would be regarded as unreasonable "If a decision on a matter is so unreasonable that no reasonable authority could have come to it." Similarly in UKAPE v ACAS [1981]13 Lord Scarman commented that "No reasonable person charged with the bodys responsibilities under the statute could have exercised its powers in the way that it did". Procedural Impropriety The courts will consider that there has been procedural impropriety in cases where the decision was not made by the person to whom the power was delegated to14, there has been an improper process15 or there has been a breach of natural justice or the decision maker has acted unfairly. This will be discussed in more detail below as breaches of the rules of natural justice are specific to the common law theory of judicial review. The doctrine of ultra vires Procedural ultra vires occurs in situations were the public body does not adhere to the correct procedure when exercising their power. Matters that would be brought under procedural ultra vires would include situations were natural justice has not been adhered to or were the person affected by the matter has not been allowed to make representations to the court16. Substantial ultra vires occurs where the body does something that has not been authorised through legislation. This was the case in Associated Picture House v Wednesbury Corporation [1947]17 where Lord Greene MR accepted that unreasonableness could be a ground on which to challenge decisions. In the case of Council of Civil Service Unions v Minister for the Civil Service [1984]18 Lord Diplock concluded that there are 3 grounds for judicial review these being illegality, irrationality and procedural impropriety. He stated that proportionality should be used when making decisions so that the achievement of the ends of the decision are not more oppressive than need be to achieve those ends. Common law theory of judicial review The common law theory is based on the notion of rights. Whereas the ultra vires doctrine concentrates on the unlawfulness of a decision based on the public body overstepping the limits of their power, the common law theory regards a decision as being unlawful if it unjustifiably violates the rights of the claimant. Allan (1988) argues that ‘the modern law of judicial review…may plausibly be interpreted as a scheme for protecting the rights of citizens in public law. Many requests for judicial review cannot be defined by the rights of an individual. This suggests that adopting a common law theory for the purposes of judicial review would be inadequate as many areas that applicants would want to challenge, could not be challenged unless the applicant could prove that their rights had been infringed by the previous decision. The common law theory approach was used in the case of R v Ministry of Defence, ex parte Smith19. In this case the applicants were challenging a ruling by the Ministry of Defence that all personnel known to be engaging in homosexual activity would be discharged from service. Those affected by the policy argued that the policy violated their right to a private life which they were guaranteed under Article 8 of the European Convention. They argued that the policy was unreasonable as it gave rise to a blanket prohibition of homosexual activity and did not take into account personnel on an individual basis. Although the Court of Appeal agreed that the private lives of the applicants had been violated, the policy was allowed to remain in force on the basis that the judges felt that they did not have sufficient power to declare the policy as unreasonable, and that the government, alone, should be allowed the power to review the policy. Since the Ministry of Defence was part of the governmental system the policy was not revoked, meaning that the right to discharge homosexuals from service would remain. A breach of the rules of natural justice at common law was indicated by Lord Diplock in CCSU v Minister for the Civil Service (GCHQ) [1984]20. In this case Lord Diplock stated that the procedural impropriety demonstrated in this case breached these rules. Lord Scarman and Lord Brightman agreed with Lord Diplock in this matter making the observation that there are certain circumstances in which the courts will imply a duty to act fairly and in accordance of the rules of natural justice. The rules of natural justice The courts have accepted certain cases where it could be argued that a breach of the rules of natural justice might occur. In order to prevent such breaches the courts tend to apply the principle of nemo judex in causa sua, which means that ‘a man must not be a judge in his own cause’. There have been a number of cases challenged by judicial review based on breaches of natural justice. The courts have recognised that bias might occur if the judge has a direct pecuniary interest or any other interest in the case matter. Pecuniary interest It has been recognised by the courts that if the decision-maker has a pecuniary interest in the case matter any decision given by that person will be regarded as ultra vires. This was held to be the case in R v Hendon RDC ex parte Chorley [1933]21. This case involved an application under the Town Planning Act 1925. One of the members of the town planning interim development authority was also an estate agent for the applicants and obviously had a pecuniary interest in ensuring that the application was granted. Although there was no proof to show that the estate agent took part in the discussion he was present when the application was approved. At the court hearing the approval was quashed on the grounds that allowing the application to succeed would breach the rules of natural justice. Other kinds of interest The courts have also interfered with decisions in cases where no pecuniary interest exists but where there is a real likelihood of bias or a reasonable suspicion of bias. The case of R v Barnsley MPC ex parte Hook [1976]22 demonstrates how a decision is likely to be overturned on the grounds of bias. In this case Hook had been dismissed as a market trader after he was caught urinating in public after the market was closed. The manager of the market brought disciplinary action against Hook and also sat with the sub-committee when the decision was made to dismiss Hook. Lord Denning reviewed the decision and held that the punishment had been too severe as there had been other similar cases where no punishment had been meted out. Lord Denning stated in his summing up that ‘it is contrary to natural justice that one who is in the position of prosecutor should be present at the deliberations of the adjudicating committee.’ The dismissal was quashed and Hook was re-instated. In the earlier case of Metropolitan Properties Ltd v Lannon [1969]23 the decision was also quashed on the grounds that there was reasonable suspicion of bias in this matter. In this case Lannon who was a solicitor and chairman of the Rent Assessment Committee had indirect connections with one of the party in the proceedings. In quashing the original decision the court stated that ‘it was not enough that justice is done, it must be seen to be done.’ Audi alterem partem As part of the principle of natural justice the courts adopt the practice of audi alterem partem, which means ‘hear the other side’. This principle is followed in situations where the person that is likely to be affected by the decision ought to be given notice that the decision is going to be made. This allows the affected party the opportunity to make representations on his own behalf and present his arguments as to why the decision would be unfair. This was demonstrated in the case of Cooper v Wandsworth Board of Works [1863]24 in which the Board were claiming the right to demolish any building erected by the plaintiff on the grounds that he had failed to give proper notice. Cooper brought an action against the Board on the grounds that they had used their powers against him without giving him the opportunity to be heard. Erle CJ found in favour of Cooper making the point that ‘no man should be deprived of his property without the opportunity of being heard’. Willes J, agreeing with Erle held that the principle of allowing the affected party the right to be heard was ‘founded upon the plainest principles of justice’. In Ridge v Baldwin [1964]25 the Chief Constable of Brighton appealed against his dismissal from service on the grounds that the decision to dismiss him breached the rules of natural justice. In this case the Chief Constable had been tried and acquitted on conspiracy charges. He was not invited to attend the meeting of the Committee when the decision was taken to dismiss him. He was represented at the second hearing where the dismissal was confirmed by the Committee. He argued that he ought to have been represented at the first meeting so that he could offer a defence to the reasons given for his dismissal. At the House of Lords hearing the Lords found the Committee to be in breach of the rules of natural justice. The court stated that dismissing the Chief Constable would mean that his pension rights would be forfeited, whereas resignation would still protect his pension. The court stated that in the interests of natural justice he was therefore entitled to have made representations at the first hearing. The duty to act fairly One of the main focuses of the common law theory is the duty of the court to act fairly. The court agreed with this notion in the case of Re HK [1967]26 in which an immigration officer did not believe that a Pakistani boy was less than 16 years old and had refused his entry into the UK. The boy and his father argued that they were entitled to a hearing. In reaching their decision the court concluded that the immigration officer had a duty to act fairly. The court stated that there was no need for a full scale enquiry and the officer only needed to let the boy know that he thought he was over 16 so that the boy could prove that he was under that age. The court found that the officer had given the boy and his father ample opportunity to prove his age and they had failed to do so, therefore the refusal to enter the UK was upheld. The doctrine of ultra vires or the common law theory Having examined the use of the doctrine of ultra vires and the common law theory it seems obvious that the courts need to recognise both approaches when determining whether an application for judicial review should be granted. The doctrine of ultra vires concentrates mainly on statutory breaches and often fails to take account of the unfairness of a decision on an individual. The common law theory, by contrast, concentrates on the theme of fairness and natural justice, and asks the courts to weigh each case on its merits rather than making a judgment based solely on the wording of the statute. For this reason, neither argument on the strengths of one approach over the other is convincing, as there is a need for the co-existence of both in order to maintain a proper balance in the judicial review process. Allowing the common law theory to supervene the doctrine of ultra vires could lead to too many issues being challenged in the courts. This could in turn cause difficulties as issues could take too long to be resolved. This might be particularly harmful in cases where the applicant is applying for a judicial review following a dismissal from work. In such a case a prolonged delay could cause severe hardship for that individual. By employing a combination of both approaches, only those cases most likely to succeed, or of most importance will be brought before the courts, thereby enabling the cases to be dealt with speedily. It would appear from all of the above that there needs to be a greater use of the common law theory in many cases, as demonstrated by cases such as R v Ministry of Defence, ex parte Smith27. The fact that the court agreed with the applicant that the Ministry had acted unfairly was negated by the reluctance of the court to use their power to challenge the policy. If the court had given greater weight to the common law theory then the decision might have been in favour of the aggrieved rather than the Ministry. Bibliography Carroll, A, Constitutional & administrative Law, Revised Ed,1998, Pitman Publishing Civil Procedure Volume 2, 2002, White Book service, Sweet & Maxwell House of Commons Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament, Fourth Report of Session 2003–04, HC 422, London, The Stationery Office Limited, 16 March 2004. House of Lords Select Committee on the Constitution, Waging War: Parliament’s role and responsibility, HL Paper 236, London, The Stationery Office Ltd, 27 July 2006. Slapper, G & Kelly, D The English Legal System, 4th Ed, 1999, Cavendish Publishing Ltd http://www.publiclawproject.org.uk/simpleguide.html#1 http://www.publiclawproject.org.uk/policyres.html http://www.hrla.org.uk/docs/jennifermcdermott.pdf Associated Picture Houses Ltd v Wednesbury Corporation CA (1948) 1 KB 233 Bromley LBC v Greater London Council: HL (1983) 1 AC 768 Carltona v Commissioner of Works (1943) 2 AER 560 CA). 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(1957) AC 488 HL Webb v Minster of Housing and Local Government [1965] 2 WLR 755 Read More