Judicial Review – Part 3

Last week the doctrine of ultra vires was introduced. The Doctrine of ultra vires requires a public functionary/authority/ administrator not to exceed his/her powers. It, therefore, means that all actions of public authorities must be intra vires within their powers and what is implied as their power by statute.{{more}}

Types of ultra vires

Two types of ultra vires have been identified. These are substantive as well as procedural ultra vires. I suppose by now you understand the meaning of the words “substantive” and “procedural” within the context of the law. Substantive is to do with what statute says on a particular area, that is the law itself, while procedural is to do with the manner in which matters are conducted. It means that public authority must follow the pattern set by the law. Hence substantive ultra vires is where an authority fails to follow statute that is laid down on a particular matter and procedural ultra vires is where an authority fails to follow the procedure set out by law. Sometimes, however, certain powers might not be stipulated by statute but could be implied by it. The court will by rules of interpretation and construction determine whether certain powers are implied.

Hence because of the doctrine of ultra vires an administrator is bound to act according to the law and not according to what he may think is appropriate, otherwise he might find that his action is the subject of a court case. Remember that as mentioned in a previous article leave must be obtained for judicial review.

Substantive Ultra Vires

With substantial ultra vires, whatever statute stipulates as the law must be followed by the relevant person. For example, it may say that a power is not to be delegated. If that power is delegated and another person assumes the duties then that person would have acted outside his powers. Where a person acts and the powers are not specifically given in the law, a judge may be able to conclude that it is implied. This is done on the basis of what may be reasonably incidental to the powers given by statute. Thus a judge may invoke the “reasonably incidental” rule. This may be done especially where the statute pertaining to the particular act might be ambiguous. The judge, therefore, has the power to use the rules of interpretation and construction to give teeth to the legislation. In the case of Computer Information Services Ltd v AG (Suit No 365 of 1990, High Court Barbados), the Applicant Company had sought to carry our massive searches in the Land Registry of Barbados. The information gathered was to be offered for sale to law firms in the country. The Registrar’s levy of a charge was regarded as ultra vires because although the Minister had the power to make regulations prescribing fees for making searches, no provision existed in respect of any other fees.

Procedural Ultra Vires

As the word suggests, this has to do with the procedure that is followed by the authority. The authority must follow the procedure that the law dictates, although all procedures may not be laid down in the law. However, the court has prescribed what a fair procedure is.

Procedure may either be mandatory or directory. There is no way of avoiding a mandatory procedure. If the authority breaches a mandatory procedure the decision made will be null and void. Professor Albert Fiadjoe points to some difficulties that is associated with differentiating the two. He maintains that if the breach is hinged to a constitutional right then there could be no difficulties in regarding it as a mandatory breach. The above discussion will no doubt reinforce the need for public servants to know the law under which they operate.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com