Substantive ultra vires

The administrative agency must act within the power conferred by parent/enabling laws.

1. Adv. Vijay Jayshwal Kathmandu University School of law S ubstantive Ultra Vires

2. Concept The “Doctrine of Substantial Ultra Vires” which is the present issue in concern is a substantial principle of administrative law having its own importance and influence in the legal scenario irrespective of the boundaries of law . The doctrine envisages that an authority can exercise only so much power as is conferred on it by law . An action of the authority is intra vires when it falls within the limits of the power conferred on it but ultra vires if it goes outside this limit. The doctrine of ultra vires has two aspects: substantive and procedural.

3. The Development of the Legitimate Expectation Doctrine in General Administrative Law Judicial review is the process by which maladministration by any administrative authority is generally challenged. There are a range of grounds for judicial review that have been developed by the courts, predominantly in the 20th century, building on earlier legal processes. One of the more recent developments has been that of the doctrine of legitimate expectation as one basis on which administrative authorities can be bound to their statements or actions through the process of judicial review. The courts have had to negotiate a fine balancing act between various principles of administrative law as these principles have developed . The principles may at times limit what a public body can do and/or give individuals rights in relation to the acts of those bodies. However at other times those same principles may limit the ability of an individual to challenge the pubic body’s acts.

4. General rule of Doctrine of Legitimate Expectations The ultra vires rule, where a power vested in a public body is exceeded, and acts done in excess of the power are invalid as being ultra vires ; The rule that an authority which is entrusted with a discretion must direct itself properly on the law or its decision may be declared invalid ; The rule that public bodies may not fetter their own discretions, and thus a body must not contract in advance to exercise a power in a particular way ; The rule that the courts may not put themselves in the position of having to exercise the discretions of administrative bodies ; The notions of fairness, including what is referred to as the doctrine of legitimate expectation.

5. Development In 1905, it was stated that ‘ a public body invested with statutory powers … must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably.’ ( Lord McNaughten in Westminster Corporation v London and North Western Ry. [1905] AC 426). However, during the latter part of the 20th century the courts appeared to weave their way through what could at times be apparently conflicting principles, by developing one particular aspect of the notions of fairness: the doctrine of legitimate expectation. The legitimate expectation must be such that it would be an abuse of power for the public body to resile from the matter in respect of which it has allowed a statement to be made.

6. Indeed, notions of fairness in a judicial context do not simply require courts to ask: is it fair to allow the authority to change its decision or practice? Fairness is the act of balancing the potentially conflicting interests of the individual and the administra tor . Lever Finance Ltd v Westminster (City) London Borough Council (8 [1971] 1 QB 222) where the Court of Appeal held that the council was bound by the statements made by the planning official and the building stayed, even though the neighbors felt justifiably aggrieved that the permission should never have been granted. ‘ If an officer, acting within the scope of his ostensible authority, makes a representation on which another acts, then a public authority may be bound by it, just as much as a private concern would be .”

7. In 2001, in the case of R v North and East Devon Health Authority , ex parte Coughlan , ([2001] QB 213) the court set out a statement of where the doctrine of legitimate expectation had reached: The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course . (b) The court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural in nature.

8. So, a distinction has been drawn between cases involving procedural expectation and substantive exp ectation but, throughout, the underlying question continues: would it be an abuse of power for the public authority to resile from the matter in respect of which it has allowed a legitimate expectation to arise ? Proportionality is seen as key. So: ‘ where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance; where the promise is made to an individual or specific group; these are instances where denial of the expectation is likely to be harder to justify as a proportionate measure. In R ( Bancoult ) v Secretary of State for Foreign and Commonwealth Affairs ([2009] 1 AC 453) Lord Hoffmann said: ‘ It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is “clear, unambiguous and devoid of relevant qualification”

9. Hence There may be substantive or procedural legitimate expectation. In considering whether the representation by the public body can be enforced, it is necessary to consider : ( i ) How unambiguous the statement is, whether the representation was made to an individual or a specific group, and whether there has been detrimental reliance; ( ii) The extent to which the administrator’s change of view or practice raises greater public interest issues . If, without a specific commitment, the distinct and substantial policy affects a person or group who was entitled to rely on it, then that person or group should be consulted before the policy is changed.

10. Some of the consideration for substantive ultra vires The nature of substantive powers Judicial review of substantive power The limits of statutory powers (defining the limits, fundamental matters of law, rights and obligations of inferior courts, error of substantive portion of law) Ouster clauses ( a  clause  or provision included in a piece of legislation by a legislative body to exclude judicial review of acts and decisions of the executive by stripping the courts of their supervisory judicial function)

11. The orthodoxy in English administrative law circles is that ouster clauses are unlikely ever to be effective. The underlying logic of the majority of the House of Lords in the landmark case of  Anisminic v Foreign Compensation Commission  [1969] 2 AC 147 is that an ouster clause does not protect an unlawful decision from judicial oversight — a “determination” tainted by an error of law was only a purported “determination” and thus fell outside the protection of a clause providing that any “determination” of the Commission could not be called into question in the courts. With unlawfulness being given an ever-wider scope by the English courts, it seems almost impossible to craft an ouster clause that would unambiguously exclude judicial review on all of the many grounds of review .

12. R (Privacy International) v Foreign and Commonwealth Secretary  [2017] EWCA Civ 1868, penned by a highly respected public lawyer (Sales LJ), that judicial oversight of the Investigatory Powers Tribunal has been successfully ousted by s. 67(8) of the Regulation of Investigatory Powers Act 2000: The determinations , awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.

13. Governing principles The implication is that any clauses purporting to deprive the courts of their judicial review jurisdiction should be narrowly construed because they make “a substantial inroad upon usual rule of law standards in this jurisdiction ”. There must be perfect balance between preserving an elements of judicial supervision of executive action and parliament's ostensible desire to allocate final decisions-making authority to executive bodies of specialist. These are some of traditional notion of ouster clauses used by the Parliament in order to curtail the availability of judicial review: Finality clauses- decisions to be final, not be questioned (or words to that effect) No certiorari clauses Conclusive evidence clauses Time limitations Preclusion

14. Error of law on the face of Record The decisions of the inferior courts affected by errors of law will usually be regarded, not as ultra vires for excess or abuse of some fundamental legal requirements of their powers, but as merely voidable decisions. A voidable decision is a legally effective decision until it is quashed by the court, in contrast to an ultra vires decisions which is null and void ab initio. A decision could be quashed as being ultra vires if additional evidence beyond the record of a decision could be produced. The availability of certiorari is to cure error of law on the fact of the record.

15. The Limits of Discretionary Powers When a statute provides that an administrative agency has discretionary powers, it does not allow unlimited discretion ( Dickson v. Secretary of Defense,  68 F.3d 1396 (D.C. Cir. 1995 )) An agency which has been granted discretion by statute is expected to limit its discretion based on the regulations imposed by the statute. When the legislature has provided a clear and unambiguous law, agencies are not justified in altering, modifying, or extending the reach of law ( Ashcroft v. Industrial Comm’n ,  855 P.2d 267 (Utah Ct. App. 1993) Administrative agencies are expected to apply just and fair discretion.  These agencies should comply with established principles of justice while exercising discretion.  It would amount to abuse of discretionary power if administrative agencies act arbitrarily, carelessly, fraudulently, or without factual basis ( Louisiana State Board of Medical Examiners v. Beatty,  220 La. 1 (La. 1951 ))

16. The problem of Subjectively worded Discretionary Powers Hard to determine the applicability of power Possibility of misused Court has to provide legality and maximum chances for multiple interpretation No common standards for the enforcement of decision Possibilities of less effective and uncommon enforcement Wider play of decision maker and possibilities of bad game

17. Policy and exercise of discretionary powers Where statue confers a discretion on an administrative agency, that agency has an opportunity to make a choice in determining what action to take or decision to make. In order to make such action, administrative agency may adopt a policy. A policy will often be made where the administrative agency is charged with the responsibility of distributing scarce resources in order to achieve what seems to be equitable of the resources. Whatever the policy adopted by an administrative agency, that policy must be within the limits of the powers of the Act in questions ( Cumings v Birkenhead Corporation 1972). The basis for legal requirements relating to policy is that the statutory responsibilities of administrative agencies cannot be fettered or frustrated.

18. Lawful and unlawful policies If a policy is ultra vires the Act under which can administrative agency is discharging its functions, that agency nevertheless acts unlawfully where the policy prevents consideration of the merits of each case. Policy must not widen-up or limited the power conferred by the Act. Unlawful policy will be subject to judicial review and also the cat can be challenged based on it.

19. Other considerations… Acts under dictation The interpretation and application of policy Relevant consideration Improper purposes Total unreasonableness Proportionality

20. See you on remedies for unlawful and irregular administrative action (unit 4).