ADMINISTRATIVE LAW: JUDICIAL REVIEW AND THE ULTRA VIRES FACTOR
HELLO again... today we look briefly but as usual critically into this Administrative law doctrine of judicial review. Hope you find it informative. To start with, maybe a brief definition. Administrative Law can be defined as the law relating to public
administration. It is the law relating
to the performance, management and execution of public affairs and duties. Administrative law is concerned with the way
in which the government carries out its functions.
Judicial Review is an examination of the manner in which a decision was
made or an act done or not done. This
definition is found in Chief Constable
of North Water Police V. Evans [1982] 1
WLR 1155,
the purposes of Judicial Review from
that definition are as follows; to prevent excessive exercise of powers by administrative
bodies and officials, to ensure
that an individual is given fair treatment by Administrative
authorities, to keep
Administrative excesses in check and also to provide a remedy to those
aggrieved as a result of excessive exercise of power by administrative bodies.
Article 23 (3) (f) of the
constitution 2010 allows for judicial review. Judicial review can only
be done in the high court which is stipulated in the Law reform Act Section 8. Courts of Law will intervene in public
administration in one or more of the following circumstances i.e. courts of law
will review actions of admin bodies in one or more of the following
circumstances. However; not all the circumstances described below
need to be illustrated in one scenario, only one is efficient to amount for a
judicial review in a public body. Discusses below are the grounds for judicial
review.
Doctrine of ultra
vires
It means beyond the
powers so that if ultra vires
is the basis in which courts will interfere on matters of public administration
then the point is that court will intervene on matters of public administration
if the bodies have acted beyond the powers that have been conferred on them.
There are two types of ultra vires, these are substantive ultra vires and
procedural ultra vires. Substantive ultra vires is acting in excess of powers
with regard to matters of substance. It includes acting beyond what is authorized.
Substantive ultra vires includes the following scenarios; exercising power in
excess of statutory limits, acting in excess of jurisdiction,and breach of the
principles of natural justice whereby failure to give notice of hearing to a
concerned party for example would amount to breach of principles of natural
justice and that falls under substantive ultra vires. Sheikh Brothers Ltd vs.
Hotels Authority [1940] K.L.R. 23, the court said, in allowing a portion of
accommodation rates to be fixed required that some comparative relation must be
maintained between the accommodation rates fixed formonthly residents and other
residents.
Procedural ultra vires
also known as procedural law, these are cases where admin bodies fail to follow prescribed procedure. They
also include cases where an error
occurs in following procedure. The courts have been prepared and are
mandated to use or to apply ultra vires doctrine in the cases that we have
cited to invalidate actions of public bodies. If a body has done something that
amounts to procedural ultra vires, the court will be prepared to apply the
doctrine of ultra vires to
invalidate that action. The
effect of finding that an act or a decision is ultra vires is that it is
invalidated. It means that the
court will declare that act or decision null and void. White and Collins
vs. Minister of Health [1939] 2 KB 838, this case concerns the
exercise of power of compulsory purchase of land. A housing authority was
granted power under the Housing Act of 1936 to acquire land compulsorily for
housing ‘provided that land did not
form part of any park, garden or pleasure ground.’ The Housing Authority
went ahead and acquired land or purported to acquire land that was a park. After they acquired this land, they sought
and obtained confirmation of their acquisition from the Minister of Health (the
one responsible for giving confirmation of such services). The purchase itself
was also ultra vires because the land was a park and there was a statutory
restriction on the purchase of any land that was a park. The court quashed the order for purchase as
well as the purchase declaring it null and void.
Unreasonableness
The question of concern is has
the public body has considered or taken into account any matter that it ought
not to take into account and if it has disregarded any matter that it ought to
take into account. R V. Ealing London Borough Council Ex
parte Times Newspapers Ltd (1986) 85 L.G.R. 316 (Local Government Reports), In this case the council was
held to be unreasonable in refusing to provide certain Newspapers to their
libraries because the council did not agree with the Newspapers Proprietors on
political grounds. The court held that the council was unreasonable in refusing
to provide their libraries with certain Newspapers.
Jurisdictional
error
It is the area in which a body is
allowed to act, includes territorial limits. Where there is an error it means; an
administrative agency has acted without jurisdiction, or they have acted within
jurisdiction but have gone beyond or exceeded their jurisdiction. In case any
one of these things occurs and a person is aggrieved, as a result the aggrieved
person can apply to the High Court for Judicial Review on the ground that a
public body has committed jurisdictional error. Case of Anisminic Ltd. V.
Foreign Compensation Commission (1969) 2 AC 147, the House of Lords held that
the Commission had misconstrued the instrument because where the original owner
of the property claimed he was British the nationality of his successor in
title was irrelevant. The Commission had
considered a matter totally irrelevant to the questions which they had been
granted jurisdiction to determine. They
had embarked on an enquiry beyond the limited inquiry directed by
Parliament. Accordingly they had exceeded
their jurisdiction and their purported determination was invalid and not
protected by the provision preventing proper determination of the Commission
being questioned in courts.
Error
of law
An error of law is a condition
or an act of imprudent deviation or departure from the law. Ignorant departure
would include a situation where an administration official is ignorant of the
law. Negligence would be where an administrative body fails to do what the law
provides and in this case they have failed to look up the law to see what it
provides. This can result from a number of things such as, failure to ascertain
what the law is on a particular matter or what the law says about a particular
matter, a result of misconstruction of the law, and misinterpretation of the
law. Kamundi v R (1973) E.A. 540 (CAK),
the appellant was convicted without following the court. On further appeal to
the Court of Appeal of Eastern Africa it was held that a magistrate had the
judicial discretion to allow a change of plea before passing the sentence and
he had not exercised it therefore his failure amounted to error of law. The
result of error of law is that the decision made in error, all the acts done in
error of law are invalidated upon judicial review because they are illegal and
therefore upon judicial review they are invalidated.
Abuse of power
The courts will interfere with an administrative
authority’s decision or question it if it can be shown to amount to an improper
exercise or use of power. Abuse of power includes scenario’s where the power
and authority given to public bodies has been put to an improper use whereby a
decision or action, may be designed to achieve a purpose that is beyond the
responsibilities of the government body. Secondly, it’s used so as to injure or
to damage; this arises where the application of powers by the authorities is
made in bad motive such as its purpose was not for the good of the society.
Where it’s used corruptively; this illustrates administrative actions that
appear in impunity. The courts maintain a reluctance to interfere in the
exercise of discretion that has been granted to a decision maker; however, as
recognized in Roberts v Hopwood [1925] AC 578 the courts maintain the right as the ultimate arbiter
of what is lawful. That’s why the courts come to play in instances of improper
exercise or abuse of power. If the court finds that an administrative body has
abused its power or his power, any act done or decision made will be
invalidated.
Irrelevant considerations
A relevant consideration is one which the court would
say must be taken into account where as an irrelevant decision is one which
must not be taken into consideration as basis for any decision or action.
Irrelevancy occurs in two situations these are; where a decision making body
considers a matter which it ought not to consider in arriving at a decision.
And, where an administrative body disregards something, which ought to consider
in making a decision. In the case of
Secretary of State for Education and Science V. Tameside Metropolitan Borough
Council (1977), the court stated that in the process of review, it is for a
court of law to establish whether in reaching the unfavourable decision
complained of, a public body has taken into consideration matters which upon
the true construction of the act at issue ought not to have been considered and
excluded from consideration matters that were relevant to what had to be
considered.
Bias
The rules of natural justice require that the decision
maker approaches the decision making process with fairness. What is fair in
relation to a particular case may differ. As pointed out by Lord Steyn in Lloyd v McMahon 918970AC 625, “the
rules of natural justice are not engraved on tablets of stone.” they are based
on rules. It is a basic rule that nobody may be a judge in his own case.
Any person who makes a judicial decision and this
includes a decision of a public authority on a request for licence must not
have any personal interest in the outcome of the decision. If such interest is
present, the decision maker must be disqualified even if no actual bias can be
shown. It is a predetermined tendency to favour one outcome, one outlook or one
person against another. Bias involves acting partially i.e. acting favourably
to one side. Whenever an allegation of bias is made, a reviewing court will
investigate whether there is an appearance of partiality. A reviewing court will evaluate whether there
is a tendency of one side to favour one person. There are certain principles
that will guide the court in determining the presence of bias. These are
illustrated as follows; the real likelihood of bias, the test here as to
whether the decision should be set aside is whether there is a real possibility
of bias. Circumstances in which the court will conclude are where the decision
maker has an interest in the matter under consideration such as pecuniary.
Secondly, the real danger test, the courts consideration is whether there is a
real danger that a public official or body participating in a decision will be
influenced by a personal interest in the outcome of a case.
Unfair hearing
There are two major/key components to natural justice;
being given a reasonable opportunity to be heard and having a decision made by
a decision maker who is free from actual bias or the appearance of bias.
Legislative procedures may overlap with common law obligations of natural
justice. All administrative bodies are bound to give a fair and proper hearing
to those who come before them. This is the standing principle in any review on
grounds of unfair hearing. Often the statutes will prescribe the procedure for
hearing indicating how concerned parties are to be heard. In the absence of
statutory provisions setting forth procedure for hearing common law rules
regarding fair and proper hearing will apply. They supplement statutory
procedures for a fair process. Where a public body makes a decision without due
regard to prescribed procedure or without due regard to common law principles
of fair hearing, an aggrieved party will be entitled to petition the court for
review.
Unreasonableness
This is an action or
decision was so unreasonable that no reasonable body would have reached it.
This is often called "manifest unreasonableness", or "Wednesbury
unreasonableness" after an old English case; Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223, the Court of Appeal held that a
court could interfere with a decision that was 'so unreasonable that no
reasonable authority could ever have come to it'. From
the case of Council of Civil Service
Unions v Minister for the Civil Service
by Lord Diplock, applies to a decision which is so
outrageous in its defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the question to be decided could
have arrived at it.
Bad faith
Another ground of attack on administrative actions that appear on their face to be proper is that of "bad faith". Here, it is necessary to show the decision was affected by corruption, bribery, dishonesty or similar malpractice. The great difficulty, of course, is to obtain evidence to prove what is considered by the courts to be a very grave allegation against the conduct of government.
Natural justice
Natural is being in accordance with or determined by
nature based on the inherent sense of right and wrong.
Principles of natural justice are implied so
you will not see them expressed in a statute; they are supposed to apply in
every case unless a statute expressly states that they will not apply.
These principles of natural justice are rules
governing procedure and conduct of administrative bodies. In the case of, Fairmount Investments Ltd. Vs. Secretary of
State [1976] 2 AER 865,
this principles apply so long as a public body has
power to determine a question affecting a person’s rights in addition to
questions affecting people’s rights, the principles apply to bodies in every
case involving a question affecting a person’s interest.
Wherever there is a right there is an interest
but not vice versa. Interest may include
other things. Interest may be pecuniary
interest or something else and does not necessarily have to be a right.
Natural justice creates two principles, these are nemo judex in causa sua potest meaning that no man can be a judge
in his own cause, which will be breached where the decision-maker has a direct
financial interest or has acted both as prosecutor and judge, or where there is
a real danger of bias. And audi alteram
partem hear the other side, which requires
prior notice to be given of a decision adverse to individual interests together
with an opportunity to make representations. The effect of failure to comply with the rules of natural justice is
that any decision or other administrative action taken is null and void and can
be invalidated by the courts.
There are remedies that are sought after a court
intervenes in an administrative body these are; mandamus is a command. It is a
court order issued to compel the performance of a public duty where a public
body or official has unlawfully refused to do so, prohibition is an order that
stops administrative bodies from continuing proceedings decisions wrongly or
wrongfully made and lastly Certiorari
is an order quashing decisions by inferior courts, tribunals and public
authorities where there has been an excess of jurisdiction or an ultra vires
decision; a breach of natural justice; or an error of law. By setting aside a
defective decision, certiorari prepares the way for a fresh decision to be
taken.
Comments
Post a Comment