Embracing the indispensable relationship between the legislature and the judiciary,
and their respective constitutional responsibilities, provides an opportunity to consider the benefits of differing academic perspectives, in relation to the value of theoretical understanding of the practice of administrative law.1
Ultra vires is indicative of an act being beyond the scope of its power. However, it does not establish whether an act is beyond that of the prescribed power of the legislature, as it may intend to place certain limitations on the exercise of executive power, or whether such limits are more so regarded as a creation of a new doctrine of a constitutional
common law creation of the courts. It is this issue which divides the two factional theories in the debate about the foundations of judicial review.
In the modern context of administrative law, Paul Graig provides that the jurisdiction of the administrative courts as that of ‘policing the boundaries stipulated by Parliament’2. However, it is rather adequate to use the precise wording of the process itself to deduce one of the principle foundations of judicial review; that of ‘reviewing’, at least being concerned with analysing the validity of the exercise of discretionary power assigned by Parliament to administrative agencies and public bodies.3 Very little has changed with regards to the that of the modern and its precursor definition of ultra vires. The traditional Diceyan ultra vires principle as proposed, is based on the same assumption that judicial review is legitimated through the courts applying the intent of the legislature, or if Parliament has found it necessary to accord delegated power to ministers, administrative agencies.4 Wade and Forsyth observe, in relation to the constitutional framework of the United Kingdom the same regard as that of Craig.5
The ultra vires principle was regarded as both a necessary and sufficient basis for judicial intervention. As Christopher Forsyth has written in the vigorous defence of the ultra vires principle, contending that ‘it remains vital to the developed law of judicial review’.6 One of the dominant arguments advanced by Forsyth is that, if the doctrine of ultra vires is ultimately abandoned, the courts will be unable to circumvent ouster clauses7 as they have done in previous cases such as Anisminic Ltd. v. Foreign Compensation Commission8.
1 Andrew Haplin, ‘The Theoretical Controversy Concerning Judicial Review’ 2003 MLR 489.
3 Paul Craig, Administrative Law (8th ed, OUP, 2016) 6.
4 Paul Craig, ‘Ultra vires and the foundations of judicial review’ 1998 CLJ 63, 64
5 William Wade & Christopher Forsyth, Administrative Law (10th ed, OUP 2009) 31; “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. He is on safe ground only where he can show that the offending act is outside the power. The only way in which he can do this, in the absence of an express provision, is by finding an implied term or condition in the Act, violation of which then entails the condemnation of ultra vires.”
6 William Wade & Christopher Forsyth, Administrative Law (7th ed, OUP 1994) 122.
7 An ouster clause is a 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.
8 1969 2 AC 147; (The decision that Ouster clauses (like those in the Foreign Compensation Act 1950) are to be interpreted as narrowly as possible such. This illustrates the courts’ reluctance to give effect to any legislative provision that attempts to exclude their jurisdiction in judicial review.)