ABSTRACT
Introduction With the procedural aspects of judicial review proceedings in mind, attention can now be turned to the grounds on which judicial review may be sought. Two principal classes of action may be pursued: those which allege that there has been a breach of statutory requirements, and those alleging that a decision has been reached in an unreasonable manner or in disregard of the rules of natural justice. These broad headings have traditionally been divided into a number of subheadings. In Council of Civil Service Unions v Minister of State for Civil Service (1985) (the GCHQ case), the House of Lords took the opportunity to offer a rationalisation of the grounds for judicial review and ruled that the bases for judicial review could be subsumed under three principal heads, namely, illegality, irrationality and procedural impropriety. 1 It was accepted that further grounds for review such as ‘proportionality’ might emerge. Lord Diplock elucidated the concepts:
The Traditional Doctrine of Ultra Vires Ultra vires refers to action which is outside – or in excess of – powers of decision-making bodies. While judges continue to use the term ultra vires , it is nowadays too limited a term to encompass the whole ambit of judicial review. It may be preferable, therefore, to regard judicial
review as the control of discretion and the regulation of the decision-making process by the courts. By way of example, in R v Hull University Visitor ex parte Page (1993), Lord BrowneWilkinson adopted the traditional language of ultra vires :
Two cases illustrate this rule. In R v Richmond upon Thames Council ex parte McCarthy and Stone Ltd (1992), the local planning authority implemented a scheme of charging £25.00 for informal consultation between corporation offi cers and property developers. The House of Lords held that the imposition of the charge was unlawful. Such a charge was neither incidental to the planning function of the local authority, nor could a charge be levied on the public without statutory authority. The council had misconstrued its powers and, accordingly, acted ultra vires . Further, in Hazell v Hammersmith and Fulham Council (1992), the council attempted to increase its revenue through fi nancial investments which, for success, were dependent upon the fl uctuation in interest rates. The House of Lords ruled that the council had no power to enter into ‘interest rate swaps’ which were purely speculative in nature. Such speculation was inconsistent with the statutory borrowing powers conferred on local authorities and neither conducive to nor incidental to the exercise of those powers. 3
Diffi culties with the traditional ultra vires doctrine The ultra vires principle is consistent with the doctrine of parliamentary sovereignty and, to some extent, with the concept of the rule of law. However, there are objections to the courts holding so tenaciously to a concept which, in some respects, is inappropriate to describe what the courts actually do in the control of administrative powers. The judges cling to the ultra vires doctrine as a means of protecting their constitutional position. As has been seen in Chapters 4 and 6 , the judges are not entrusted with constitutional powers to invalidate Acts of Parliament, and judicial decisions are susceptible to being overruled by Acts of Parliament. 4 With the supremacy of Parliament in mind, the judges exercise care to maintain a suffi cient separation of powers. It is for this reason that judges are cautious about reviewing the exercise of prerogative powers and limit their role in relation to parliamentary privileges to ruling on the existence and scope of privilege. Keen awareness of this constitutional position explains the hold which the traditional doctrine of ultra vires has for judges. Ultra vires is entirely consistent with the supremacy of Parliament and the rule of law. However, the doctrine of ultra vires cannot explain adequately the judges’ power to rule, as they do, on certain aspects of decision making. While the judges declare that matters of ‘high policy’ are not for them to decide, when judges rule on ‘unreasonableness’ or, as Lord Diplock classifi es the concept, ‘irrationality’, the judges come close to ruling on the merits of a particular decision. Furthermore, as shall be seen below, the concept of ‘error of law’ fi ts uneasily with the concept of ultra vires .
