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The validity and invalidity of delegated


legislation
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This article is a topic within the subject Administrative Law.

Contents
1 Required Reading
2 Introduction
3 General Test of Invalidity
4 The Complement/Supplement Distinction
5 The regulate/prohibit distinction
6 The means/ends distinction
7 Unreasonableness as a test of invalidity
8 Reasonable proportionality and the purpose/subject matter distinction
9 Formal and informal delegation of decision-making power
10 End
11 References

Required Reading
R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed,
2012, [8.4.1-5]; [8.4.10-11C]; [8.4.16C-18]; [8.4.20-26C]; [8.5.1]-[8.5.8].

Introduction
[1]
Delegated legislation, like any other area of exercise of power, has to abide by the principle of
legality and come from an identifiable source of legal authority. In that sense, delegated
legislation or the exercise of power under can be said to be invalid.

The validity issue may arise in the context of:

Compliance with statutory procedural requirements eg, has it been tabled in


parliament, published and notified to the public?
Substantive statutory authorisation is there support in the parent Act (or is it
ultra vires)?
Narrow statutory construction authority conferred in general terms to make a
rule thought necessary or convenient will not ordinarily allow a tax or penalty to
be imposed, condone entry onto private property, preclude access to the courts,
retrospectively operate, or curtail a fundamental freedom such as the right of
public protest.
Compliance with administrative law criteria for legal validity also known as
grounds for judicial review, include if the purpose is authorised, the effect is
disproportionate, unjust or unreasonable or if the subordinate legislation
impermissibly sub-delegates the authority to make rules.
Consistency with primary legislation must be consistent with not only the
parent Act but also any other Acts, unless there is an override (or Henry VIII)
clause. State subordinate legislation is also invalid if inconsistent with
Commonwealth Acts or subordinate legislation.
Constitutional compatibility does the regulation transcend the
Commonwealths legislative authority under the separation of powers? Does it
infringe an implied constitutional guarantee?

Any of the above issues may prevent the subordinate law from being valid and therefore, from
operating.

General Test of Invalidity


In McEldowney v Forde[2] Lord Diplock devised the test:

1. Determine the meaning of the words used in the Act of Parliament itself to
describe the subordinate legislation which that authority is authorised to make,
2. Determine the meaning of the subordinate legislation itself,
3. Decide whether the subordinate legislation complies with that description.

In South Australia v Tanner[3] Brennan J compares the approach to that adopted by a court in
deciding whether a law enacted by the parliament is within the legislative powers conferred by
the Constitution:

However, in his opinion, the authority for subordinate legislation should be


construed more narrowly than the validity of legislation.
o ...parliament shall not be held to have delegated to another repository more
power than is clearly denoted by the words it has used... a delegation of
legislative power should be more narrowly construed unless the parliament has,
by express provision or necessary intendment, revealed a contrary intention.
Brennan J raises the issues of judicial deference should the court defer to the
view of an executive body? He favours the view that construction should be
narrow and therefore deference to executive intention should be limited.

A countervailing view is expressed by the majority in Tanner, who warn that on the the specialist
issue there under construction a court must exercise care not to impose its own untutored
judgement on the legislator and should accordingly adopt a broad, rather than a narrow,
approach...
Rich J made a similar observation in Footscray Corporation v Maize Products Pty
Ltd[4] that the bodies entrusted to create subordinate legislation are familiar with
the locality and the needs of the residents where the by-law is to operate and are
therefore better fitted than judges to deal with their requirements.
Weinberg J, in Vanstone v Clark,[5] noted that some courts have cautioned
against erecting hypothetical examples of abuse as a basis for finding by-laws
invalid.

In conclusion:

The issue of validity is determined by a process of statutory construction,


applied to both the parent Act and the subordinate rule.
The court does not examine the wisdom or expediency of the subordinate rule.
In construing both instruments, it is necessary to refer to matters such as the
terms of the legislation, the nature of the body entrusted with the power to
make rules, the subject matter and presumptions of statutory meaning.

The Complement/Supplement Distinction


[6]
The scope of delegated legislation is generally limited to the power to make rules which are
necessary or convenient to give effect to the primary Act.

They are ancillary or incidental to administering the Act (Morton v Union


Steamship Co of New Zealand[7]) or have some rational relationship with the
objects or purposes of the Act (Evans v State of New South Wales[8]).

In Shanahan v Scott,[9] the court held that the regulations can complement but not supplement
the parent Act.:

Facts: The Marketing of Primary Products Acts established an Egg Board for the
marketing of eggs. A regulation was made to prevent placing eggs in cold storage
or subjecting them to preservative treatment the purpose of this was to make it
difficult in Victoria to sell eggs from NSW.
Held: The parent legislation only concerned eggs vested in the Vic board. The
regulation attempted to extend or 'widen' the legislation into a further field of
regulation (ie, to NSW eggs), which is invalid and ultra vires.
o Delegated legislation can complement but not supplement the parent Act. Power
will not support attempts to widen the purposes of the Act, to add new and
different means of carrying them out or to depart from or vary the plan which the
legislature has adopted to attain its ends.

The regulate/prohibit distinction


Generally, delegated legislation can only regulate, and not outright prohibit, activities. This was
discussed in Foley v Padley:[10]
Facts: The Rundle Street Mall Act 1975 allowed the Adelaide City Council to
make regulate activity in the mall that is in the opinion of the council, likely to
effect the use or enjoyment of the mall. The council made a by-law which
prevented people from 'handing out' or distributing anything to others (intended to
prevent fliers). The appellant submitted that the description of activities in the by-
law is very wide and capable of including many innocent activities.
Held: there is a presumption that subordinate legislation should not be construed
to restrict individual liberties, unless an intention to do so clearly appears.
Accordingly, the present by-law is interpreted to only apply to the distribution of
large volumes of fliers etc to unconnected passerbys. On this interpretation, the
by-law was held to be valid because it does not affect the use or enjoyment of the
mall.
o Dissent (Brennan): the by-law may prohibit activity of an inoffensive nature. A
by-law which confers a discretionary power that is too wide may be invalid for
the reason that it might be used for a purpose other than the purpose for which
the statute conferred power to make the by-law ie, the risk of abuse of power.
Note: this illustrates that even when delegated legislation appears to have the
capacity to prohibit/oppress the public, the court may read it down and state that it
is valid in its reduced state.

In OConnell v Nixon,[11] the court held that a power to regulate an activity may include a power
to prohibit part of an activity subject to discretionary dispensation.

The means/ends distinction


Another distinction (which is important but not decisive) is that delegated legislation can specify
the means to get a particular end but not simply state the desired ends in themselves.

This was discussed in Utah Construction and Engineering Pty Ltd v Pataky:[12]

The Privy Council held that an Act conferring power to make regulations
relating to the safeguards and measures to be taken for securing safety and health
of persons in engaged in... excavation work did not support a regulation
providing that Every drive and tunnel shall be securely protected and made safe
for persons employed therin.
The regulations did not tell a contractor what measures to take but merely
imposed an absolute duty to ensure safety - that is violating the means/end
distinction.

Unreasonableness as a test of invalidity


[13]
Another test for the invalidity of delegated legislation is a test of unreasonableness.
However, courts have generally been reluctant to apply this test because of the broad authority
usually given to make subordinate rules, the expertise of the body making the rules and a
concern not to stray into merits review.
The test has also been overshadowed by a reasonable proportionality test (see
below) that must be met by subordinate legislation made pursuant to a power that
is purposive in nature.

One of the few instances where the test was upheld was in in Minister for Primary Industries and
Energy v Austral Fisheries Pty Ltd:[14] where the court held that delegated legislation may be
declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness,
injustice or partiality.

An illustration of its rejection by the courts is given in De Silvia v Minister for Immigration and
Multicultural Affairs:[15]

Facts: The Australian government amended the Migration Regulations to allow


those who had arrived prior to November 1993 to seek permanent residence in
Australia. The appellant argued that the regulation change unreasonable (and
invalid) due to the differential and unfavourable treatment of those arriving after
1993.
Held: the argument was rejected - there was a policy rationale for the cut-off.

Reasonable proportionality and the purpose/subject matter


distinction
[16]
A new trend has been to apply a test of 'reasonable proportionality' - ie, examining whether
there is a valid connection exist between a legislative or executive action and the purported
source of authority for the action.

This was discussed in South Australia v Tanner:[17]

Facts: Tanner wanted to construct an aviary on his property. However, an act


against pollution had a regulation set up to prevent him from constructing a zoo or
aviaries. Tanner challenged its validity.
Held: the reasonable proportionality test examines whether there is a valid
connection between a legislative or executive action and the purported source of
authority for that action.
o The question is whether the regulation was reasonably proportionate to the end
to be achieved or the purpose of the parent Act.
It can also be seen as whether there was 'sufficient nexus'. A broad approach
should be taken when determining the nexus.
o In this case, the regulation was sufficiently connected to the purpose of reducing
or preventing deterioration and pollution of the water supply and therefore valid.
o Dissent (Brennan): not specific enough therefore not proportionate enough.

Formal and informal delegation of decision-making power


[18]
Legislation, in conferring power to make a decision, will invariably nominate the person
authorised to exercise that power - known as the principal.

The validity of a decision can hinge on whether it was made by the person
nominated in the legislation.
This principle is founded on the maxim that a delegate cannot delegate, which
presupposed that the principal is the delegate of the legislature and is obliged to
safeguard the power so entrusted to them.

There are 4 categories of authorised decision makers:

1. Principal - Person nominated in the legislation as the authorised decision maker


or statutory office holder.
o The principal retains the authority, even when the power to do so has been
delegated to other officers: s34AB(d) of the Acts Interpretation Act 1901.
2. Delegate - Person or officer to whom power or function has been delegated.
o Delegates scope of authority will be set out in the instrument of delegation: it
may replicate that of the principal, or be hedged with limitation or conditions.
3. Agent - To make decisions on behalf of a principal or delegate.
o Exceptions: where there is a practical administrative necessity is the phrase used
in Re Reference.
4. Administrative assistant - To conduct research, interview someone, prepare a
briefing paper or notify a decision to those affected.

This was discussed in Re Reference under Section 11 of Ombudsman Act 1976 for an Advisory
Opinion; Ex Parte Director-General of Social Services:[19]

Facts: s11 provided that the Cth Ombudsman could request an agency to refer a
question to the AAT for an advisory opinion. Question referred to the tribunal
concerned the validity of a decision made by a delegate of the Director-General of
Social Services under s14 of the relevant legislation to affirm an earlier decision
refusing unemployment benefit to a school leaver. The delegate, Mr Prowse, had
signed a letter notifying the applicant of the decision to affirm the refusal of
benefit.
Held:

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End
Why is it necessary to have controls over delegated legislation? Are the present controls
satisfactory?

Written by Kayleigh Gregory


Delegated legislation is law made by another body other than Parliament but with the authority
of Parliament. Statutes passed by Parliament contain the basic framework of the law, this act will
usually contain an enabling Act which delegates the power to others to make more detailed law
in that area. An example of this is the Access to Justice Act 1999 which includes an enabling Act
that delegate's power to the Lord Chancellor to alter various aspects of the legal funding
schemes. Another example can be seen in the Disability Discrimination Act 1995 which
contained an enabling Act that delegated power to the Secretary of State to make regulations on
points involving employment and the provision of services. The other bodies that are delegated
the power are usually government departments, public or nationalised bodies or local authorities.
There are three main types of delegated legislation. These are statutory instruments, bylaws and
orders in council.

Statutory instruments (SI)

These are made by Ministers and Government departments as they have been given the authority
to make regulations for areas under their particular area of responsibility. This is a major method
of law making. There are approximately 3000 statutory instruments brought into force each year.

Bylaws

These can be made by local authorities. In this case the law brought in place for a specific area.
Bylaws mainly concern traffic and parking within a certain district or town. Bylaws can also be
made by public and nationalised bodies for matters within their jurisdiction which involves the
public. An example of this type of bylaw would be the smoking ban on the London Underground
System. All bylaws must be approved by central Government.

Orders in Council

Under the Emergency Powers Act 1920, the Queen and the Privvy Council have the authority to
make Orders in Council in times of emergency when Parliament is not sitting. They would be
drafted by the relevant Government department, approved by the Privvy Council and signed by
the Queen.

Delegated legislation is an extremely important source of law because it involves rules which
will affect the day to day running of lots of people's lives. As delegated legislation is made by
non-elected bodies and there are so many with the power to make delegated legislation it only
makes sense that what legislation is made should be controlled. There are several ways in which
delegated legislation is controlled. The main ways are supervision by parliament and supervision
by the courts.

Supervision by Parliament

Obviously, parliament has the initial control with the enabling Act which sets out in which
situation delegated legislation is to be made. Parliamentary sovereignty means that parliament
has the power to revoke a piece of delegated legislation at any time or they can pass legislation
on the same subject.
In order to control statutory instruments there are two procedures. There is a procedure called the
affirmative resolution procedure. This is when a statutory instrument must be shown in front of
both houses of parliament and only becomes law if both houses approve it within a specified
time limit. This time limit is usually 28 or 40 days. In order to be approved a vote must be taken
so this means that parliament must set time aside for debate. According to 'AS Law by Elliott &
Quinn 'it is very rare for the Government not to achieve a majority when such votes are taken'.
There is a very small amount of statutory instruments which will be subject to this and the need
for this will be stated in the enabling Act. There is another procedure used by Parliament in order
to control delegated legislation. This is called the negative resolution procedure. A large number
of statutory instruments will be subject to this. The statutory instrument is put to Parliament and
within a specific amount of time they can make an annulment against the delegated legislation.
This annulment motion is then debate and if it is agreed, the legislation can be invalid. If
however, there is not an annulment motion, the delegated legislation will be made law after the
time of limit, which is stated in 'The English Legal System' by J. Martin to be 40 days.

Parliament have a scrutiny committee that watches over the making of delegated legislation and
writes reports to each houses of parliament containing information about any delegated
legislation they feel will need special consideration. However the committee can only refer a
statutory instrument back to a house of parliament on the grounds that it imposes a tax or charge,
it has a retrospective effect which was not provided for by the enabling Act, it has exceeded the
powers given by the enabling Act or it is unclear or defective in some way. The committee has
no power to alter any statutory instruments, just simply report on its findings.

Publication is also a method to control legislation, as the legislation would be available for the
public to see and comment.

Consultation plays a part in controlling delegated legislation because those who make the
delegated legislation usually consult experts within the particular field and those bodies that are
likely to be affected by the legislation. For example, under the National Insurance Act 1946, any
draft regulations have to be sent to the National Insurance Advisory Committee.

Control by the courts (judicial review)


Courts can challenge delegated legislation on the grounds that it is ultra vires. There are two
situations in which legislation can be ultra virus. Firstly, a piece of delegated legislation can be
ruled ultra vires if the body who created it acted out of their powers that were granted to them by
parliament in the enabling Act. This type is known as substantial ultra vires. Any legislation that
is ruled ultra vires is void and not effective. This was illustrated in the R v Home secretary, ex
parte fire brigades union. In this case the Home secretary had made alterations to the Criminal
Injuries Compensation scheme but had exceeded the power granted to him in the Criminal
Justice Act 1988. Secondly, delegated legislation can be ruled ultra vires if the correct
procedures have not been followed. This is known as procedural ultra vires. An example of this
was in the Aylesbury mushroom case (1972) when not all organisations that would be affected
by the delegated legislation were informed. This made that piece of delegated legislation ultra
vires. Statutory instruments can also be made void if they conflict with European law.
Criticisms of controls over delegated
legislation
Supervising delegated legislation is very difficult. Publication has limited affects because few
people actually know about delegated legislation and where to find it. Even at this point, most
people do not know on what ground you can challenge it and how to go about it. This then has
big effect on the controls the courts have over delegated legislation because judicial reviews
relies on individual challenges being brought before the court. It will go unnoticed, sometimes
for years, until it affects someone who is prepared to challenge it. The main effect of this will
then be on those who a piece of legislation may largely affect, who are unaware of their rights
and sometimes do not have the financial capability to go to court and challenge it.

Another problem with delegated legislation is that some enabling Acts can be ambiguous and
leaving open for a wide interpretation. This giving power to the Ministers and leaving little room
for the legislation to be ruled ultra vires in judicial review. The enabling Act might include a
phrase such as, 'the minister may make such regulations as he sees fit for the purpose of bringing
the Act into operation'.

Even parliamentary controls have criticisms and this is the main method of controlling delegated
legislation. Affirmative resolutions mean that parliament gets to see important legislation (which
is a good thing) but it is almost impossible to prevent any legislation getting passed. The
Scrutiny committee have been able to secure some changes in legislation but on the whole has no
real power. The committee is unable to consider the merits of legislation and their reports have
no real binding effect.

The controls over delegated legislation must be satisfactory because there has been no major
problems or disasters so far. The methods of control should be reformed to be more effective.
For example, delegated legislation should be made more accessible to the public, the people who
the delegated legislation is affecting.

In my opinion, there shouldn't be any delegated legislation. Parliament is the main and supreme
law making body in Britain and law making should be kept to parliament and its departments.
Delegated legislation obviously isn't very effective because there wouldn't be the need for these
controls, yet alone criticised controls, if it were fully effective. As stated in 'AS Law' by Elliott &
Quinn 'Delegated legislation is sometimes made by people other than those that were given the
original power to do so'. Doesn't this make you wonder, who is making the British law that we
are abiding by today?

Kayleigh Gregory.

March 2004.

Please note that I have reservations about the argument of Kayleigh that there should not be any
delegated legisation. Indeed, Parliament would find it more or less impossible to establish the
time to fully debate and approve legislation. It should also be noted that delegated legislation is
currently used for the introducation into UK law of EU directives.

Despite these reservations, I do think this is an interesting essay. Dr Peter Jepson.

Control Over Delegated Legislation


Delegated legislation is allowing bodies below the parliament to pass their own legislation. There
are three main forms of delegated legislation they are, statutory instruments, by-laws and Orders
in Council. Statutory instruments are constructed by the Government departments. For example,
the Parent Act permits the parliament about how legislation can be written and handle with.
They are also engaged in the other Commonwealth countries other than the UK such as Canada.
The Proclamation of the Queen of Canada was brought into impact and introduced the
Constitution Act 1982 which is UK is known as the Canada Actj 1982. By-laws are created by
the local authorities which have to be approved by the central Government. For example, the
smoking ban in public areas in London is a by law because other local authorities can apply these
regulations about public attitudes on their assertion. Orders in Council are made by the
government in an emergency, they are rafted by the concerning Government departments,
approved by the Privacy Council and signed by the Queen. It is exceedingly important as it can
affect many individuals, moreover Orders in Council could have been used during the seventh of
July 2005 London bombings.

Delegated Legislation is deemed necessary for a number of reasons. Firstly, the parliament does
not have the time to deliberate and debate every detail of complicated rules. Delegated
legislation allows laws to be made quickly than Parliament as Parliament does not sit all the time
and its procedure is rather slow because each Bill has to pass through all the stages. Another
reason why delegated legislation is necessary is because MPs do not frequently have the
technical ability required. Knowledge is required for example, at work for safety or when
carrying out difficult taxation proposals, this is where delegated legislation can use their
professionals in their favoured topics. Furthermore, for the local individuals it is vital that they
recognise and take into account their needs. The democratic bodies have important powers to
make delegated legislation . It can also be easily revoked so that legislation can be updated
frequently for the such as concerning welfare benefits. Delegated legislation comes into great
benefit when problems occur concerning the result of a statue.

There are a numerous critical reasons why it is necessary to have control over delegated
legislation . Taking into account that delegated legislation is made by elected representatives,
individuals have the aptitude to pass delegated legislation. Without control, there would be many
absurd laws such as the Strickland V Hayes Borough Council (1986). In this case, a by-law
prohibited an indecent song which was held by the court as invalid. There are a number of cases
where delegated legislation has come into power to abstain damage to authorities for example,
the National Union of Teachers (2000). A criticism of delegated legislation is that too often
power is given to other individuals rather than those who had power at the beginning. Also, with
access delegated legislation critics have argued that there is overuse in the law.
Delegated legislation is controlled by the Parliament and the judiciary. Overall, the Parliament
has control along with statutory committees who take into account the delegated powers made by
a Bill. Using the negative resolution procedure statutory instruments can become legislation in
either two ways. One of the ways it commences is when after the statutory instruments is written,
it is shown to Parliament. However, if after forty days there are no counter arguments it instantly
becomes law, if there is some concern then it is debated upon. The other procedure is more
oppressive as the Parliament does not amend any statutory instruments in fact only one out of ten
instruments are passed under this procedure. This is because this situation has to be debated upon
and by both Houses within twenty-eight to forty days. There are disadvantages to this as it may
take longer for Parliament to raise any issues especially from other parties. In reality, its highly
unlikely for the Government not to reach a majority when so many votes are taken into account.

The Joints Committee gas control over statutory instruments paying attention to delegated
legislation being created. Special further consideration is made before the committee step of the
Bill and is reported to each House. If though the committee does not consider the virtues of
delegated legislation, it is then the House of Lords Merits of statutory instruments committees
responsibility. With both procedures time is an important issue and in this case a huge
disadvantage of the Joints Committee is that the committee may not even get discussing any
legislation. However, advantages of the affirmative resolution procedure includes attracting the
publics view and opinions, allows both Houses to advocate and is put before the parliament.
There are two grounds of ultra vires procedure, the definition ultra vires refers to beyond the
powers there are two types, procedural and substantive.

Delegated legislation may be controlled by the judiciary and can be illustrated by using cases
such as the Aylesbury Mushroom case (1927), Strickland V Hayes Borough Council (1896) and
Attorney-General V Fulham Cooperation (1921). In the Aylesbury Mushroom case (1927) the
Minister didnt ask the mushroom Growers association when delegated legislation relating to
them was made. This case shows how delegated legislation is challenged by the courts, the
Training Board which was used for land-workers in this case was held as invalid by the courts
but valid for everyone else who had been consulted. This demonstrates that a Minister should
always abide by the rules in the Enabling Act and it is useful to have delegated legislation. The
substance ultra vires demonstrates that when a decision is made outside the powers on the basis
conferred by a decision maker, under the enabling act. The case relating to this occurred in the
Customs and Excise Commissioners V Cure & Deely Ltd (1962) where the power of the
commissioners to make delegated legislation under the finance act no. 2 (1940) were challenged.
The Act allowed them to create rules for any matter for which provision appears to them
necessary for the purpose of giving effect to the Act. The High Court concluded that it gave
Government departments far too much power which was beyond Parliament. This is because
their role was to collect the tax due only.

The Parliamentary Sovereignty is a principle of the UK constitution. This means that it can make
and demolish any law with legal official permission to do so in this country including delegated
legislation. It is important because Parliament can pass laws that future Parliaments cannot
amend.

2)
Judges use various methods to interpret law, using constriction. There are three different types
which include the Literal rule, Golden rule and Mischeif rule.

The literal rule states that words in a statue should be in their ordinary and natural meaning, if
the words of a statue are vibrant they must be clarified with the ordinary meaning; it does not
matter how absurd the end result is. An example of the literal rule was used in Whitley V
Chappell (1868) where the court held that Whitley could not find guilty of impersonating any
person entitled to vote at an election. This is because he impersonated a dead person who clearly
was not entitled to vote and physically cannot do! The literal rule associates two rules the
noscitur a socils rule and the ejcisdene generis rule. The first means that the meaning of the word
or phrase must be arbitrated by its context. For example, the word switch has no real meaning
on its own, but with its meaning it becomes more understandable and vivid when its brought
into context. E.g. switch on the light . The ejusdem generis rule, which is the when the meaning
of any general term is dependent on any specific terms which precedes it. For example, in the
Sunday Observance Act 1677 it included that no tradesman, artificer, workman, labourer or
other person whatsoever shall do or exercise any worldly labour. The phrase or other persons
whatsoever is a phrase which is too broad in this context and almost impossible to predict. It
was found that an estate agent was not within the exception.

The advantages of the literal rule is that it respects parliamentary sovereignty, where those who
are elected for the job are left for law-making only. Moreover, because the statue is kept in their
ordinary and natural meaning it makes the law more accurate and reliable for when lawyers want
to advise their clients. The disadvantages of the literal rule is that is can lead to a bised and
absurd conclusion like in the Whitley V Chappell case, where voting for a dead individual the
defendant was not charged as guilty. In another case London and North Eastern Railway Co. V
Bernman demonstrates the discrimination produced. As it shows the type of work done doesnt
change the amount of danger the workers were exposed to. In addition, as we looked at the
different types of rules it is still difficult to define certain terms, when brought into context.

The Golden Rule, defined by Lord Wensleydale in Grey V Pearson (1857) is the elaboration,
expansion and equanimity of the literal rule. If the literal rule gives an absurd outcome or
conclusion then the Judge can replace another meaning in the light of the statute. The Golden
Rule can be viewed in two ways, firstly by constricting the meaning and as a results clarifying
the meaning of the word which will not lead to incongruity. For example in the Alder V George
(1964) case the defendant had been charged under section three of the official Secrets Act 1920
obstructing a member of the armed forces which is an offence in the vicinity of any prohibited
place. The individual argued that the natural meaning of in the vicinity meant near to, whereas
the defendant performed the obstruction within the area. The decision was made that in the
vicinity could only indeed be interpreted as meaning near to therefore the court didnt restrict
the literal phrase of the Act and the defendant was found guilty. The second way the golden rule
can be viewed is by using the wider approach, which is used to avoid absurd outcomes to rules
even if the word has only one meaning. To illustrate, the Re Sigworth (1935) case which
described a son murdering his mother. The mother had not made her will and the Administration
of Justice Act 1925 which stated a person, could not inherit the estate of the decease if they had
murdered that person otherwise the murderer would benefit from his/her crime The court held
that the son could not benefit from the crime even though the word issue had one literal
meaning in the Act. Therefore the golden rule was used to avoid the abhorrent situation of the
son inheriting. The advantages of the golden rule is that it allows Parliament to choose the most
suitable word which will fit appropriately preventing any absurdity caused by the literal rule. The
disadvantage of the golden rule is that it is used in infrequent situations perhaps this is because
the Law Commission noted in 1969 that it granted no clear meaning of an absurd result.

The mischief rule was introduced in the sixteenth century in the Heydons case (1584) and
provides that the courts should consider three factors when deciding the true meaning of the
statute. These factors include what was the common law before the statute was passed , what
mischief the statute was trying to cure and what remedy the Parliament was trying to provide.
There are many cases which illustrate the mischief rule such as the Smith V Hughes (1960)
case where six women appealed against this as they were sitting in a house on the ground floor
apparently attracting men by tapping on the window as they were walking by. The Streets
Offences Act 1959 claimed that it is a criminal offence for a prostitute to solicit herself in public
on the street or a public place to customers. But as the prostitute was not actually on the street the
judge decided that the women were guilty as they were still attracting the men. Also, the judge
decided that individuals who do not walk on the street without being solicited should also be
authorised in the Act. Moreover, the Royal College of Nursing V DHSS 1981 case used the
mischief rule when the wording used in the The Abortion Act 1976 which stated that abortion
can only be performed by a registered medical practioner. But in 1972, nine years before,
surgical abortions were mainly replaced by drug induced ones, this lead to the second stage of
the procedure which included the patient attached to a drip, conducted by a general doctor. The
court had to decide whether this method was illegal or not, the House of Lords claimed that the
mischief, which the Act preferred to cure was too vague from the previous law which lead to
many women performing abortion acts on themselves alarmingly. Eventually they decided that
abortion acts should be carried out by a professionally skilled hygienic nurse from the hospital.
The advantage of the mischief rule allows a rather more satisfactory approach described by the
Law Commission in 1969. As a consequence its a more flexible approach letting judges fill in
the gaps in the law at the appropriate places making it accomplished when looking back.
However the disadvantages is that when judges do look back and try to fill in the gaps, they often
fill accordingly to their own perspective therefore lawyers tend to struggle when advising their
clients as its rarely used.

The purposive approach known as the preferred approach looks at what the Parliament is trying
to achieve, clarifying that the interpretation of the law is correct searching for the purpose of the
law. Judges use laws from the past to fill the gaps in preferred spaces. Lord Dennings stated his
views in Magor and St Mellons Rural District Council V Newport Corporation (1952) We do
not sit here to pull the language of Parliament to pieces and make nonsense of itwe do this
better by filling in the gaps and making sense of the enactment than by opening it up to
destructive analysis . This statement was strongly criticised by Lord Scarman sharing his views
that we are governed by Parliaments intentions but by governments enactments. Already, we
can see a friction being caused by the two judges which can cause a major issue when analysing
the purposive approach. Legislation can be interpreted using the purposive approach explained in
the R (Quintavalle) V Secretary of State for Health (2003) where the House of Lords were
asked to interpret the Human Fertilisation and Embryology Act 1990. (p57). Their use of
embryos was regulated by the Human Fertilisation and Embryology Authority (HFEA), scientist
later discovered a new cloning method where replacing the nucleus of an egg with a cell from
another individual instead of been created by a fertilised egg. The Government released a
statement saying that medical research involving cloned embryos did fall within the Act and
could be regulated by the HFEA. However, Pro-life Alliance opposed to this and wanted a
declaration of the courts that HFEA was performing outside statutory powers. As a result, the
House of Lords gave the Act a purposive interpretation to show the true aims of the Parliament
and they could not have intended to prevent cloned embryos from being controlled by the HFEA.
This illustrates that the advantage of the purposive approach is that it allows any new laws to
take place as with new technology old laws will eventually be outdated and need replacing. On
the other hand, it may make people feel uneasy that judges, without being elected are creating
laws when they wish to rather than using the words conducted by the Parliament.

So far I have expressed the four different ways in which judges take to statutory interpretation
judges may also use internal aids which are found within the piece of legislation. The literal and
the golden rule both lead the judge to internal aid and help the judges understand the statute more
clearly. The internal aids include the long and short title of the Act or the subheadings within it.
The explanatory notes defines the sections, the rules of language as mentioned earlier including
the ejusdem generis and the noscitur a sociis. Presumptions are also used to interpret legislation
such as the following, the legislature doesnt take out any issues from the jurisdiction of the
courts and laws which introduce crimes should be favoured for the citizen where uncertainty is
shown. In the case LOffice Cherifen des Phosphates Unitramp SA V Yamashita-Shinnihon
Steamship Co Ltd 1994 disturbed the presumption against the retrospective consequence. It
pointed out the rule of simple fairness, if the House Of Lords had read the relevant statute as
imposing the suggested degree of retrospective effect would the result be so discriminative that
Parliament could not have intended it. Just as their words may have suggested a retrospective
effect? Judges would have had to look at a number of issues including the nature of the rights
affected, the lucidity of the words and the background of the law.

External aids include judges using things outside the statute to help them understand the meaning
of it clearly. Using the historical setting, dictionaries, reports, treaties and Hansard. The historical
setting may be considered when interpreting legislation along with dictionaries to find the
meaning of legal terms. Reports may be lead by a Royal Commission, the Law Commission or
another member of the advisory committee. In Black Clawson International Ltd V Paperiwerke
Waldhof- Aschaffenbury AG 1975 the report was considered and was indicated by the House of
Lords, that the original reports would be considered as evidence of the pre-existing state of the
law. Treaties and international conventions are considered when believing the presumption that
Parliament do not create laws in the same way that the UK would be. Hansard

Effectiveness of Parliamentary Control over


Delegated Legislation
Administrative law is the bye-product of the increasing socio-economic functions of the State
and the increased powers of the government. Administrative law as a separate branch of legal
discipline, especially in India, came to be recognized by the middle of the 20th century. Today
the administration is ubiquitous and impinges freely and deeply on every aspect of an
individuals life. Therefore, administrative law has become a major area for study and research.
Administrative Law has been characterized as the most outstanding legal development of the
20th century. Administrative Law is that branch of the law, which is concerned, with the
composition of powers, duties, rights and liabilities of the various organs of the government.

Administrative law has become very necessary in the developed society, as the relationship of
the administrative authorities and the people have become very complex. In order to regulate
these complex relations, some law has become the need of the hour; which may bring about
regularity, certainty and may pose a check on the misuse of powers vested in the administration.

Administrative law can be traced to the well-organized administration under the Mauryas and
Guptas, followed by the administrative system of Mughals; to the administration under the East
India Company, the precursor of the modern administrative system. But in the modern society,
the functions of the state are manifold. In fact, the modern state is regarded as the custodian of
social welfare and consequently, there is not a single field of activity which is free from direct or
indirect interference by the state. Along with duties and powers the state has to shoulder new
responsibilities. The growth in the range of responsibilities of the state thus ushered in an
administrative age and an era of Administrative law. Every delegate is subject to the authority
and control of the principal and the exercise of delegated power can always be directed,
corrected or cancelled by the principal. Hence parliamentary control over delegated legislation
should be a living continuity as a constitutional remedy. The fact is that due to the broad
delegation of legislative powers and the generalised standard of control also being broad, judicial
control has shrunk, raising the desirability and the necessity of parliamentary control. The
Parliamentary control over delegated legislation in USA and India is not as effective as in UK. In
UK the laying off procedure is followed effectively because there all administrative rule-making
is subjected to the control of Parliament through the Select Committee on Statutory instruments.
In India the control is not very much effective. There are no statutory provisions regarding
laying of delegated legislation. Though the working of the Scrutiny committees is not very
effective, yet they have proved to be an effective body in examining and improving upon the
legislative control over delegated legislation. The practice of delegated legislation enables the
executive to experiment. This method permits rapid utilization of experience and implementation
of necessary changes in application of the provisions in the light of such experience.
Experiments can be made and experience can be profitability utilized. A law passed by
Parliament has to be in force till the next session of the Parliament when it can be repealed. In
situations, which require frequent adjustments, experimentation is the only answer. The
underlying object of parliamentary control is to keep watch over the rule-making authorities and
also to provide an opportunity to criticize them if there is abuse of power on their part.
Parliament has control in that the enabling or parent Act passed by Parliament sets out the
framework or parameters within which delegated legislation is made. In India, the question of
control on rule-making power engaged the attention of the Parliament. The legislative control
over administration in parliamentary countries like India is more theoretical than practical. In
reality, the control is not that effective as it ought to be.

One of the most significant developments of the present century is the growth in the legislative
powers of the executives. The development of the legislative powers of the administrative
authorities in the form of the delegated legislation occupies very important place in the study of
the administrative law. We know that there is no such general power granted to the executive to
make law. The work of executive is limited to supplement the law under the authority of
legislature. This type of activity has been described as delegated legislation or subordinate
legislation. Delegated legislation refers to all law-making, which takes place outside the
legislature and is generally expressed as rules, regulations, bye-laws, order, schemes, etc. In
other words when an instrument of a legislative nature is made by an authority in exercise of
power delegated or conferred by the legislature, it is known as delegated legislation. In modem
times the sheer bulk of legislation required to effect the business of government is so great that if
the legislative function were performed by Parliament alone, then the law-making machine
would become choked and grind to a standstill.

Delegation of powers means the powers passed on by the higher authority to the lower authority
to make laws. Delegated legislation means the powers given by the legislature to the executive or
administration to enact certain laws. The simple meaning of the expression delegated
expression may be:

When the function of the legislation is entrusted to organs other than the legislature by the
legislature itself, the legislation made by such organs is known as delegated legislation.

According to M.P. Jain, the term delegated legislation is used in two senses: (a) exercise by a
subordinate agency of the legislative power delegated to it by the legislature, or (b) the
subsidiary rules themselves which are made by the subordinate authority in pursuance of the
power conferred on it by the legislature.

The concept can be further substantiated with the help of an example. The Parliament of UK
itself made the Road Traffic Act, 1930, and so the legislation is original (rather than delegated).
Section 30 of that Act provides that, the Minister [of Transport and Civil Aviation] may make
regulations as to the use of motor vehicles, their construction and equipment. Accordingly the
Minister made the Motor Vehicles (Construction and Use) Regulations, 1955. The regulations
were made by someone other than Parliament and are, therefore, delegated (rather than original)
legislation.

Delegated legislation, also referred to as secondary legislation, is legislation made by a person or


body other than Parliament. Parliament, through an Act of Parliament, can permit another person
or body to make legislation. An Act of Parliament creates the framework of a particular law and
tends only to contain an outline of the purpose of the Act. By Parliament giving authority for
legislation to be delegated it enables other persons or bodies to provide more detail to an Act of
Parliament. Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit
others to make law and rules through delegated legislation. The legislation created by delegated
legislation must be made in accordance with the purpose laid down in the Act.

Delegated legislation is not a new phenomenon. Ever since the statutes came to be made by the
Parliament, delegated legislation also came to be made by an authority to which the power was
delegated by Parliament. There has been always a need for delegated legislation. The factors
leading to the growth of delegated legislation may be summarised as below:
The bulk of the business of the Parliament has increased and it has no time for the consideration
of complicated and technical matters. The Parliament cannot provide the society with the
requisite quality and quantity of legislation because of lack of time. Most of the time of the
Parliament is devoted to political matters, matters of policy and particularly foreign affairs.

To meet emergency
Certain emergency situations may arise which necessitate special measures. In such cases speedy
and appropriate action is required. The Parliament cannot act quickly because of its political
nature and because of the time required by the Parliament to enact the law. In such cases quick
action needs to be taken. In times of war and other national emergencies, the executive is vested
with special and extremely wide powers to deal with the situation. There was substantial growth
of delegated legislation during the two world wars.

Certain matters covered by delegated legislation are of a technical nature which requires
handling by experts. In such cases it is inevitable that powers to deal with such matters is given
to the appropriate administrative agencies to be exercised according to the requirements of the
subject matter. Parliament cannot provide for such matters as the members are at best politicians
and not experts in various spheres of life. Therefore, it is convenient for the legislature to confine
itself to policy statements only, as the legislators are generally ignorant of legal and technical
skills.

The practice of delegated legislation introduces flexibility in the law. At the time of passing any
legislative enactment, it is impossible to foresee all the contingencies. Legislative amendment is
a slow and cumbersome process, but with the aid of delegated legislation, the executive can meet
the situation expeditiously.

The practice of delegated legislation enables the executive to experiment. This method permits
rapid utilization of experience and implementation of necessary changes in application of the
provisions in the light of such experience. Experiments can be made and experience can be
profitability utilized. A law passed by Parliament has to be in force till the next session of the
Parliament when it can be repealed. In situations, which require frequent adjustments,
experimentation is the only answer.

To meet unforeseen contingencies


Parliament while deciding upon a certain course of action cannot foresee the difficulties, which
may be encountered in its execution. Accordingly various statutes contain a 'removal of
difficulty clause' empowering the administration to remove such difficulties by exercising the
powers of making rules and regulations. These clauses are always so worded that very wide
powers are given to the administration.

(i) Saves parliamentary time.


(ii) Government Ministers often consult interested bodies and parties before drafting statutory
instruments.
(iii) Delegated legislation is more flexible than an Act of Parliament. It can be passed quickly
and easily amended or revoked, so that the law is up to date. Therefore, it allows rapid change.
(iv) Delegated legislation helps in removing the difficulty clause and meet unforeseen
emergencies expeditiously.
(v) Also helps in meeting situations of emergency and thus helps in reducing parliamentary
pressure.

(i) Delegated legislation is not well publicised in contrast to debates on Bills in Parliament.
(ii) Parliament has insufficient time to scrutinise the laws. Parliament is not reviewing legislation
properly.
(iii) Sub-delegation of powers a further problem, which causes complexity and confusion. It is
impossible for anyone to keep abreast of all delegated legislation.

(iv) The large volume of delegated legislation produced every year (some 3,000 statutes
annually) means that it is very difficult for Members of Parliament, let alone the general public,
to keep up to date with the present law. This is exacerbated by the fact that delegated legislation
is made in private, unlike Acts of Parliament which are made following public debates in
Parliament.

One of the most significant developments of the present century is the growth in the legislative
powers of the executive. The development of the legislative powers of the administrative
authorities in the form of the delegated legislation occupies very important place in the study of
the administrative law. We know that there is no such general power granted to the executive to
make law; it only supplements the law under the authority of legislature. Such type of power is
known as delegated legislation.

The underlying object of parliamentary control is to keep watch over the rule-making

authorities and also to provide an opportunity to criticize them if there is abuse of power on their
part. Parliament has control in that the enabling or parent Act passed by Parliament sets out the
framework or parameters within which delegated legislation is made. In India, the question of
control on rule-making power engaged the attention of the Parliament.

Every delegate is subject to the authority and control of the principal and the exercise of
delegated power can always be directed, corrected or cancelled by the principal. Hence
parliamentary control over delegated legislation should be a living continuity as a constitutional
remedy. The fact is that due to the broad delegation of legislative powers and the generalised
standard of control also being broad, judicial control has shrunk, raising the desirability and the
necessity of parliamentary control.

With regard to the control of the legislature over delegated legislation, M.P. Jain states:

In a parliamentary democracy it is the function of the legislature to legislate. If it seeks to


delegate its legislative power to the executive because of some reasons, it is not only the right of
the Legislature, but also its obligation, as principal, to see how its agent i.e. the Executive carries
out the agency entrusted to it. Since it is the legislature which grants legislative power to the
administration, it is primarily its responsibility to ensure the proper exercise of delegated
legislative power, to supervise and control the actual exercise of this power, and ensure the
danger of its objectionable, abusive and unwarranted use by the administration.

In U.S.A., the control of the Congress over delegated legislation is highly limited because neither
is the technique of laying extensively used nor is there any Congressional Committee to
scrutinise it. This is due to the constitutional structurization in that country in which it is
considered only the duty of courts to review the legality of administrative rule-making.

In England, due to the concept of Parliamentary sovereignty, the control exercised by Parliament
over administrative rule-making is very broad and effective. Parliamentary control mechanism
operates through laying techniques because under the provisions of the Statutory Instruments
Act, 1946, all administrative rule-making is subject to the control of Parliament through the
Select Committee on Statutory Instruments. Parliamentary control in England is most effective
because it is done in a non-political atmosphere and the three-line whip does not come into
operation.

In India parliamentary control of administrative rule-making is implicit as a normal


constitutional function because the executive is responsible to the Parliament. There are three
types of control exercised:

Direct but general control over delegated legislation is exercised:

(a) Through the debate on the act which contains delegation. Members may discuss anything
about delegation including necessity, extent, type of delegation and the authority to whom power
is delegated.

(b) Through questions and notices. Any member can ask questions on any aspect of delegation of
legislative powers and if dissatisfied can give notice for discussion under Rule 59 of the
Procedure and Conduct of Business in Lok Sabha Rules.

(c) Through moving resolutions and notices in the house. Any member may move a resolution on
motion, if the matter regarding delegation of power is urgent and immediate, and reply of the
government is unsatisfactory.

Direct special control


This control mechanism is exercised through the technique of laying on the table of the House
rules and regulations framed by the administrative authority. The notable use of this technique
was made in the Reorganization Acts of 1939 to 1969, which authorised the President to
reorganise the executive government by administrative rule-making. In England the technique of
laying is very extensively used because all the administrative rule-making is subject to the
supervision of Parliament under the Statutory Instruments Act, 1946 which prescribes timetable.
The most common form of provision provides that the delegated legislation comes into
immediate effect but is subject to annulment by an adverse resolution of either house.

By Section 4 of the Statutory Instruments Act, 1946, where subordinate legislation is required to
be laid before Parliament after being made, a copy shall be laid before each House before the
legislation comes into operation. However, if it is essential that it should come into operation
before the copies are laid, it may so operate but notification shall be sent to the Lord Chancellor
and the Speaker of the House of Commons explaining why the copies were not laid beforehand.
Under Section 6 of the Statutory Instruments Act, 1946, the draft of any statutory instrument
should be laid before the parliament.

Laying on Table
In almost all the Commonwealth countries, the procedure of Laying on the Table of the
Legislature is followed. It serves two purposes: firstly, it helps in informing the legislature as to
what all rules have been made by the executive authorities in exercise of delegated legislation,
secondly, it provides a forum to the legislators to question or challenge the rules made or
proposed to be made.

The Select Committee on delegated Legislation summarised the laying procedure under
following heads:
In this type of laying the rules and regulations come into effect as soon as they are laid. It is
simply to inform the House about the rules and regulations.

Laying with immediate effect but subject to annulment

Here the rules and regulations come into operation as soon as they are laid before the Parliament.
However, they cease to operate when disapproved by the Parliament.
In this process the rules come into effect as soon as they are laid before the Parliament, but shall
cease to have effect if annulled by a resolution of the House.

This technique takes two forms: firstly, that the rules shall have no effect or force unless
approved by a resolution of each House of Parliament, secondly, that the rules shall cease to have
effect unless approved by an affirmative resolution.

Such a provision provides that when any Act contains provision for this type of laying the draft
rules shall be placed on the table of the House and shall come into force after forty days from the
date of laying unless disapproved before that period.

In this type of laying the instruments or draft rules shall have no effect unless approved by the
House.

In India, there is no statutory provision requiring laying of of all delegated legislation. In


the absence of any general law in India regulating laying procedure, the Scrutiny
Committee made the following suggestions:
(i) All Acts of Parliament should uniformly require that rules be laid on the table of the House
as soon as possible.
(ii) The laying period should uniformly be thirty days from the date of final publication of rules;
and
(iii) The rule will be subject to such modifications as the House may like to make.
Legal consequences of non-compliance with the laying provisions

In England the provisions of Section 4(2) of the Statutory Instruments Act, 1946 makes the
laying provision mandatory for the validation of statutory instruments. In India, however, the
consequences of non-compliance with the laying provisions depend on whether the provisions in
the enabling Act are mandatory or directory.

In Narendra Kumar v. Union of India, the Supreme Court held that the provisions of Section
3(5) of the Essential Commodities Act, 1955, which provided that the rules framed under the Act
must be laid before both Houses of Parliament, are mandatory, and therefore Clause 4 of the
Non-Ferrous Control Order, 1958 has no effect unless laid before Parliament.

However, in Jan Mohammad v. State of Gujarat, the court deviated from its previous stand.
Section 26(5) of the Bombay Agricultural Produce Markets Act, 1939 contained a laying
provision but the rules framed under the Act could not be laid before the Provincial legislature in
its first session as there was then no functioning legislature because of World War II emergency.
The rules were placed during the second session. Court held that the rules remained valid
because the legislature did not provide that the non-laying at its first session would make the
rules invalid.

Even if the requirement of laying is only directory and not mandatory, the rules framed by the
administrative authority without conforming to the requirement of laying would not be
permissible if the mode of rule-making has been violated.

Indirect control is exercised by Parliament through its Committees. With a view to strengthen
Parliamentary control over delegated legislation, Scrutiny Committees were established. In UK
and India, there are Standing Committees of Parliament to scrutinise delegated legislation. In the
USA, on the other hand, there is no equivalent to such committees, the responsibility being
diffused. The responsibility is shared but a host of committees standing committees in each
House of Congress, committees on government operation in each house, and some other joint
bodies like the committee on atomic energy. In England, the Select Committee on Statutory
Instruments was established by the House of Commons in 1944. In 1950, the Law Minister made
a suggestion for the establishment of a Committee of the House on the pattern of the Select
Committee on Statutory Instruments, 1944, to examine delegated legislation and bring to the
notice of the House whether administrative rule-making has exceeded the intention of the
Parliament or has departed from it or has affected any fundamental principle.

Such a committee known as the Committee on Subordinate Legislation of Lok Sabha was
appointed on December 1, 1953. The main functions of the Committee are to examine: (i)
whether the rules are in accordance with the general object of the Act, (ii) whether the rules
contain any matter which could more properly be dealt with in the Act, (iii) whether it is
retrospective, (iv) whether it directly or indirectly bars the jurisdiction of the court, and questions
alike. The Committee has between 1953 and 1961, scrutinized about 5300 orders and rules has
submitted 19 reports.

There is also a similar Committee of the Rajya Sabha which was constituted in 1964. It
discharges functions similar to the Lok Sabha Committee.

The Committee on Subordinate Legislation has made the following recommendation in


order to streamline the process of delegated legislation in India.
(i) Power of judicial review should not be taken away or curtailed by rules.
(ii) A financial levy or tax should not be imposed by rules.
(iii) Language of the rules should be simple and clear and not complicated or ambiguous.
(iv) Legislative policy must be formulated by the legislature and laid down in the statute and
power to supply details may be left to the executive, and can be worked out through the rules
made by the administration.
(v) Sub-delegation in very wide language is improper and some safeguards must be provided
before a delegate is allowed to sub-delegate his authority to another functionary.
(vi) Discriminatory rules should not be framed by the administration.
(vii) Rules should not travel beyond the rule-making power conferred by the parent Act.
(viii) There should not be inordinate delay in making of rules by the administration.
(ix) The final authority of interpretation of rules should not be with the administration.
(x) Sufficient publicity must be given to the statutory rules and orders.

The working of the Committee is on the whole satisfactory and it has proved to be a fairly
effective body in properly examining and effectively improving upon delegated legislation in
India. Sir Cecil Carr aptly remarks: It is evidently a vigorous and independent body.

Therefore, legislature exercises its control over the delegated legislation or the rule-making
power by these two methods: namely, laying procedure and via Scrutiny committees. However,
to what extent these two methods are effective in posing a check and control over delegated
legislation, is the question which needs to be taken into consideration. The effectiveness of
parliamentary control over delegated legislation has been discussed in the next chapter.

The legislative control over administration in parliamentary countries like India is more
theoretical than practical. In reality, the control is not that effective as it ought to be.

The following factors are responsible for the ineffectiveness of parliamentary control over
delegated legislation in India:
(i) The Parliament has neither time nor expertise to control the administration which has grown
in volume as well as complexity.
(ii) The legislative leadership lies with the executive and it plays a significant role in formulating
policies.
(iii) The very size of the Parliament is too large and unmanageable to be effective.
(iv) The majority support enjoyed by the executive in the Parliament reduces the possibility of
effective criticism.
(v) The growth of delegated legislation reduced the role of Parliament in making detailed laws
and increased the powers of bureaucracy.
(vi) Parliaments control is sporadic, general and mostly political in nature.
(vii) Lack of strong and steady opposition in the Parliament have also contributed to the
ineffectiveness of legislative control over administration in India.
(viii) There is no automatic machinery for the effective scrutiny on behalf of the Parliament as a
whole; and the quantity and complexity are such that it is no longer possible to rely on such
scrutiny.

In England
In England the technique of laying is very extensively used because the administrative delegation
is subject to the supervision of the parliament under the Statutory Instruments Act, 1946, which
prescribes a timetable. The most common form of provision provides that the delegated
legislation comes into immediate effect but is subject to annulment by an adverse resolution of
either House.

In U.S.A., the control of the Congress over delegated legislation is highly limited because neither
is the technique of laying extensively used nor is there any Congressional Committee to
scrutinize it.
(i) The precise limits of the law-making power which Parliament intends to confer on a Minister
should always be expressly defined in clear language by the statute which confers it, when
discretion is conferred, its limits should be defined with equal clearness.
(ii) The use of the so-called Henry VIII Clause conferring power on a Minister to modify the
provisions of Acts of Parliament should be abandoned in all but the most exceptional cases, and
should not be permitted by Parliament.
(iii) The Henry VIII Clause should never be used except for the sole purpose of bringing an
Act into operation; and should be subject to a time limit of one year from the passing of the Act.
(iv) The use of clauses designed to exclude the jurisdiction of the Courts to enquire into the
legality of a regulation or order should be abandoned in all but the most exceptional cases.
(v) Enabling Act should contain express provisions that the rules made there-under would be
subject to such modifications as the House may like to make.

Conclusion
If in India parliamentary control over delegated legislation is to be made a living continuity, it is
necessary that the role of the committees of the Parliament must be strengthened and a separate
law like the Statutory Instruments Act, providing for uniform rules of laying and publication,
must be passed. The committee may be supplemented by a specialised official body to make the
vigilance of delegated legislation more effective. Besides this other measures should be taken to
strengthen the control of Parliament over delegated legislation.

The Parliamentary control over delegated legislation in USA and India is not as effective as in
UK. In UK the laying off procedure is followed effectively because there all administrative rule-
making is subjected to the control of Parliament through the Select Committee on Statutory
instruments. In India the control is not very much effective. There are no statutory provisions
regarding laying of delegated legislation. Though the working of the Scrutiny committees is not
very effective, yet they have proved to be an effective body in examining and improving upon
the legislative control over delegated legislation.
**********
# The first seminar on administrative law was organized by the Indian law Institute, New Delhi
in December, 1957, right after its inauguration. Since then the major area of activity of the
Institute has been administrative law.
# Dr. Sunita Zalpuri, Training Package on administrative law, Associate Professor, J & K.
Available on ,
# Avinder Singh v. State of Punjab, (1979) 1 SCC 137.
# Halsburys Laws of England, 4th Ed., Vol. 44, p. 981-984.
# C.K. Takwani, Lectures on Administrative Law, Eastern Book Company, 3rd Ed., 2007, p. 59.
# Treatise on Administrative Law, 1996, Vol. 1, p. 51.
# Supra Note 6, at p. 61-62.
# Available on http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=1569
# Available on
http://sixthformlaw.info/01_modules/mod2/2_2_1_legislation/18_del_leg_adv_disadv.htm
# Gary Slapper, The English Legal System, Taylor & Francis, 2009, p. 97.
# Avinder Singh v. State of Punjab, (1979) 1 SCC 137.
# Treatise on administrative law, 1996, Vol. I, P. 136.
# I.P. Massey, Administrative Law, Eastern Book Company, 6th Ed., 2005, p. 102.
# Supra Note 6, at p. 133.
# Delegated Legislation in India, ILI, 1964, p. 166-169.
# Supra Note 6, at p. 135.
# C.K. Thakker, Administrative Law, Eastern Book Company, 1992, p. 152.
# R v. Sheer Metalcraft, (1954) 1 All ER 542.
# AIR (1960) SC 430.
# AIR (1966) SC 385.
# Supra Note 14, at p. 108.
# Monica Chawla, Delegation of Legislative Powers, Deep & Deep Publications, 2007, p. 69.
Available on http://books.google.co.in/books?id=XNpAlSfKkCkC&dq=delegated legislation
legislative control effectiveness&source=gbs_navlinks_s
# Supra Note 14, at p. 109.
# Parliamentary Control of Delegated Legislation, Public Law, 1956, p. 200.
# Laxmikanth, Public Administration, Tata MC-Graw-Hill Education, p. 212, available on
http://books.google.co.in/books?id=9JcCVqJ14gC&dq=is parliamentary control over delegated
legislation effective&source=gbs_navlinks_s
# Geoffrey Philip Wilson, Cases and Materials on Constitutional and Administrative Law, CUP
Archive, 1976, p. 362.

Delegated legislation is controlled by


parliament itself and by judges. Explain
judicial controls on delegated legislation.
SIs are a form of legislation, often drafted by the legal office of the Government
Department concerned, allowing the provisions of an Act of Parliament to be brought
into force or altered without Parliament passing a new Act.

Grade: A-C | 0.00.


This question is about the controls exercised by the courts over delegated legislation.
Delegated legislation can be challenged in the courts on the ground that it is ultra vires,
that is to say it goes beyond the powers that were granted by Parliament in the original
enabling Act. The challenge can be made by using the judicial review procedure or if the
two parties make a civil claim.

Substantive Ultra Vires - If there is a consideration that the law may have been created
unreasonably or illegally the courts can step in to prevent or remedy an abuse of power
by public authorities.

Procedural Ultra Vires If there is a consideration that the correct procedure was not
followed when the law was created the courts can again step in and may hold that the
delegated legislation is ultra vires.

Delegated legislation, or secondary legislation, is quite simply legislation which is made


by a body other than Parliament but with the permission of Parliament. The majority of
delegated legislation is in the form of statutory instruments but it can also include Rules
or Codes of Practice. Delegated legislation can relate to technical changes in an Act,
such as amending the level of fees to be paid for a public service or can be used to add
more detail to an Act.

Judicial review or judicial control is exercised by the Queen's Bench Divisional Court
which exercises supervisory powers over the decisions of government ministers. This
function demonstrates the importance of the independence of the judiciary, as
government ministers are an arm of the state and it is important that individuals feel that
their dispute has been fairly and impartially dealt with. Such calls for judicial review have
probably grown in importance in recent years and there will no doubt be numerous
examples of instances where the judiciary have ruled against a government minister.

However this does not alter the fact that such claims are brought by individuals and
therefore such controls cannot be said to be uniform in the sense that it enables judges
to review secondary legislation as part of their role. On the contrary they only have
scope to review legislation which is brought to their attention by proceedings of judicial
review which are special to that dispute or claim.

There is one limitation of judicial review in that such proceedings must be brought
before the Divisional Court in order for them to review any delegated legislation. This is
dependent upon an individual being able to finance such a claim.
In addition such claims may be affected by a lack of awareness or lack of knowledge
due to the sheer volume of delegated legislation passed each year. In the
circumstances the fact that a claim has not been brought before the courts is no
indicator that such secondary legislation is without defect but more to do with the
difficulties of successfully financing and bringing such a claim to court.

In the event that the divisional court finds that delegated legislation is wanting for being
ultra vires (exceeding its powers) the court can make an order accordingly and the
effect is that such legislation is void and of no effect. Delegated legislation can also be
declared ultra vires for the reason that the correct procedures were not followed
(procedural ultra vires).

An example is the case of Aylesbury Mushrooms (1972) which was declared


procedurally ultra vires as the relevant minister had not followed the correct procedures
concerning consultations.

Whilst this is clearly effective in one way the effect of such an order is to make the
legislation completely ineffective. The court cannot make an order substituting or
second guessing what the minister should have done. This means that new legislation
will have to be made following correct procedures and complying with any parameters
set by the enabling Act. To this extent this causes ministers and Parliament more work
whereas if the problem had been picked up during the resolution stage this may have
been more effective in terms of time. This was illustrated by the case of R v Home
Secretary, ex parte Fire Brigade union (1995) when it was decided that changes to
the criminal injuries compensation scheme by the Home Secretary exceeded the
powers granted under the Criminal Justice Act 1988 and were declared substantive
ultra vires.

On some occasions the approach taken as part of the judicial review questions whether
the decision which is being challenged is reasonable. If the decision is found to be
unreasonable, bearing in mind the material facts upon which the decision ought to have
been based, the decision is declared ultra vires on the basis that no reasonable person
could have made such a decision. The approach is taken following the finding of
unreasonableness ultra vires in the case of Associated Provincial Picture Houses v
Wednesbury Corporation (1947) in which the former town council banned a cinema
from admitting children on Sundays. The landmark case ruled that the court could not
overrule a decision of a public body just because the court disagreed with the decision.
The court went on to set down the principles that may lead to a decision being set
aside. The court indicated that it needed to be shown that the authority took into
account factors which were not relevant to the matter being dealt with or failed to take
proper account of matters which were relevant or, that the decision was so
unreasonable that no reasonable body would have come to such a decision. The
approach has become known as Wednesbury unreasonableness and has given the
town of Wednesbury a rather strange claim to fame.

Statutory instruments can also be declared void if they conflict with European Union
legislation.

Finally it needs to be pointed out that whilst the parameters set by the enabling Act form
a limitation or control by Parliament, in that Parliament passed the original Act, the
modern trend is to draw up broad enabling powers. The effect of such methods is to
give ministers in turn wide powers but also to make it more difficult to successfully claim
under judicial review proceedings on the basis that the secondary legislation was not
permitted under the enabling Act or that the minister has exceeded their powers (ultra
vires). Are such wide powers there as a result of the will of Parliament or are they more
to do with the skills of Parliamentary draughtsmen?

(Word count 1069)

Delegated Legislation: Substantive ultra vires - SlideShare


Delegated Legislation: Procedural Ultra Vires - SlideShare

This essay looks at Judicial review and the manner in which it is exercised by the
courts. Judicial review has limitations and these are examined and the potential for
ultra vires is explored.

The work makes reference to the following cases:

Aylesbury Mushrooms (1972);


R v Secretary of State for Home Office ex parte Fire Brigade Union (1995);
Associated Provincial Picture Houses Ltd v Wednesbury Corp (1947).

Links have been provided to allow further research.

(Word Count 945)

THE DOCTRINE OF SUBSTANTIVE


ULTRA VIRES
For the purpose of making project in the subject Administrative Law, a very distinct and
important topic has been taken as the central issue of it. 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. Therefore the research would be deliberating upon the topic concerned.

Research methodology to be followed:

To deliberate upon the issue Doctrine of Substantial Ultra Vires" will be dealt in a systematic
and particular way. In this regard, Doctrinal approach has been adopted and compilation from
literary sources, course materials, articles, reviews, e-databases and books have been given
special importance. Along with founding sources the recent developments in form of judicial
pronouncement and case study has also been incorporated in this project.

The Doctrine of Ultra Vires: An Introduction


The doctrine of ultra vires is the basic doctrine in administrative 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.

When a piece of delegated legislation is declared to be ultra vires, it is void and becomes
unenforceable. It cannot affect the rights and duties of any person. Until a rule is declared invalid
by a court, it is presumed to be valid. If the valid and the invalid parts of a rule can be severed,
only then the invalid portion of the rule is quashed and the valid portion can continue to remain
operative. However, if the valid and the invalid parts are inextricably mixed up, then the entire
rule has to go. A void rule cannot be the basis of any administrative action. No one can be
prosecuted under a void rule. The validity of a rule can be challenged in a court either directly or
collaterally, or by way of defense to a civil claim based on the impugned rule, or as a defense in
a prosecution for infringing the rule. A person can challenge the validity of administrative action
by challenging the validity of the relevant rule. A person whose interest is affected adversely by
a piece of delegated legislation can directly challenge its vires in a court. The court may grant an
injunction or declaration or issue mandamus or award damages to the affected person as may be
suitable.

If the subordinate or delegated legislation goes beyond the scope of authority conferred on the
delegate or it is in conflict with the parent or enabling act, it is called substantive ultra vires. The
validity of the subordinate or delegated legislation may be challenged before the Courts on this
ground.

Grounds on which Delegated legislation may be challenged


Enabling or Parent Act is unconstitutional:

In India, there is supremacy of the Constitution and therefore an act passed by the Legislature is
required to be in conformity with the constitutional requirement and if it is found to be in
violation of the constitutional provisions, the court declares it unconstitutional and void. If
enabling or parent act (i.e the act providing for the delegation) is void and subordinate or
delegated legislation made under the act will also be declared to be unconstitutional and
therefore void. The limits of the Constitution may be express and implied.

Express Limit: Articles 13, 245 and 246 provide the express limits of the constitution. Article
13(1) provides that all laws in force in the territory of India immediately before the
commencement of the constitution in so far as they are inconsistent with the provisions of Part
III (fundamental rights) shall, to the extent of the contravention, be void. According to article
13(2), the state shall not make any law which takes away or abridges the rights conferred by part
III (i.e the Fundamental Rights) and any law made in contravention of this clause shall, to the
extent of the contravention, be void. Article 13(3) makes it clear that for this purpose, unless the
context otherwise requires , law includes any ordinance, order, by law, rule, regulation,
notification, custom or usage having in the territory of India, the force of law. The legislature,
thus, cannot violate the provisions of part III of the constitution granting the fundamental rights.
If the parent or enabling Act is violative of the Fundamental Rights granted by part III of the
constitution, it will be declared by the court as unconstitutional and void, and the subordinate or
delegated legislation made under the act will also be held to be unconstitutional and void.

Article 245 makes it clear that the legislative powers of the parliament and that of the state
legislatures are subject to the provisions of the constitution. Parliament may make laws for the
whole or any part of the territory of India and the legislatures of a state make laws for the whole
or any part of the state. No law made by the parliament shall be deemed to be invalid on the
ground that it would have extra territorial operation. The state legislature can make law only for
the State concerned and, therefore, the law made by the state legislature having operation outside
the state would be invalid. In the matter of Cauvery Water Disputes Tribunal, the Karnataka
Cauvery Basin Irrigation Protection Ordinance, 1991 was declared unconstitutional on certain
grounds including the ground that it had extra territorial operation inasmuch as it interfered with
the equitable rights of Tamil Nadu and Pondicherry to the waters of Cauvery River.

In short, no law made by Parliament shall be deemed to be invalid on the ground that it would
have extra territorial operation. However, the law made by the state legislature may be
challenged on the ground of extra territorial operation. If the parent act is declared to be
unconstitutional, then the delegated legislation made under such act would also be declared to be
unconstitutional and thus, void.

Article 246 makes provisions in respect of the distribution of powers between the powers
between the Parliament and the State legislatures. From article 246 and the seventh schedule, it
becomes clear that the subjects have been divided into three categories Union list, State list and
Concurrent list. Parliament has exclusive power to make laws with respect to any of the matters
or subjects enumerated in the Union list and of the legislature of any state has power to make
laws for such state or any part thereof with respect to any of the matters or subjects enumerated
in the State list. Parliament and State Legislatures both have power to make laws with respect to
any of the matters or subjects enumerated in the Concurrent List, but In the case of conflict
between the law made by Parliament and a law made by the State Legislature with respect to
such matter or subject, the law made by Parliament shall prevail and the laws made by the State
Legislature, to the extent of repugnancy. be void, unless the law made by the State Legislature
has received the assent of the President.

Implied limit: If the Enabling or Parent Act violates the implied limit of the Constitution, it will
be ultra vires the Constitution and therefore It will be void and the delegated legislation made
under the Act will also be unconstitutional and void. The implied limit of the Constitution Is that
essential legislative function entrusted to the legislature by the Constitution cannot be delegated
by it. The essential legislative function consists of the determination of the legislative policy and
its formulation as a rule of conduct. The legislature delegating its legislative power must lay
down the legislative policy and guidelines regarding the exercise of tin delegated power by
delegate. The delegation of essential legislative function is taken as abdication of essential
legislative function by the Legislature and this is not permitted by the Constitution.

In a case the Supreme Court has made it clear that the essential legislative function which
consists of the determination of the legislature policy cannot be delegated. Such delegation
would amount to abdication of the essential legislative functions.

The Supreme Court has made it clear that the excessive delegation is not permissible. The
doctrine of excessive delegation has played an important role in controlling the practice of
delegated legislation. Excessive delegation is taken as abdication of essential legislative function
by the legislature. The delegation must not be unguided and uncontrolled. If the delegation is
excessive, the Enabling Act or Parent Act will be unconstitutional and therefore void and the
delegated legislation made under such Enabling or Parent Act will also be unconstitutional and
void.
Subordinate or delegated legislation is ultra vires the Constitution:

Sometimes it is found that the Enabling or Parent Act is not violative of the Constitution, but the
subordinate or delegated legislation made under It violates the provisions of the Constitution.
Such subordinate or delegated legislation will be unconstitutional and void, though the Enabling
or Parent Act is perfectly valid. Thus, the subordinate or delegated legislation, (e.g., rules,
regulations, by- laws, etc.) made under the Enabling or Parent Act may be unconstitutional while
the Enabling or Parent Act is constitutional.

Article 31-B of the Constitution of India is also notable here. The Acts and Regulations Included
in the IXth Schedule of the Constitution are protected under Article 31-B against the ground of
Infringement of any of the Fundamental Rights, but not against other grounds. The protection of
Article 31-B is available only to the Acts or Regulations placed In the IXth Schedule of the
Constitution. If an Act Is placed under the IXth Schedule, the protection of Article 31-B will be
available to such Act, but this protection will not be available to the delegated legislation made
under It. Thus, the delegated legislation may be challenged on the ground that it violates the
Constitution, even though the Enabling or Parent Act under, which it has been made is protected
by Article 31-B. (Legislature in 9th schedule is not under judicial scrutiny) (zamindari
abolishment Act)

Delegated legislation is ultra vires the Enabling or Parent Act:

The validity of the subordinate or delegated legislation can be challenged on the ground that it is
ultra vires the Enabling or Parent Act. If the subordinate or delegated legislation made by the
delegate is in excess of the power conferred by the Enabling or Parent Act or is in conflict with
the provisions of the Enabling or Parent Act or is made w ithout following the procedure
required by the Enabling or Parent Act to be followed by the delegate, the delegated or
subordinate legislation will be invalid on the ground that it Is ultra vires the Enabling or Parent
Act. The validity of the exercise of power is tested on the basis of the Prussians as it stands
currently and not on the basis of that it was before.

When it is made in excess of the power conferred by the Enabling or Parent Act:

The subordinate or delegated legislation is held to be ultra vires the Enabling or Parent Act when
it is found to be in excess of the power conferred by the Enabling or Parent Act If the delegated
legislation is beyond the power conferred on the delegated by the Enabling Act, it would be
Invalid even if it has been laid before the Legislature. Where an administrative authority Is
empowered by the Enabling Act to make by-laws to regulate market and the authority makes by-
law which prohibits running of cattle market the by-law will be ultra vires the Enabling Act.

In S.T.O. v. Abraham the Act empowered the Government to carry out the purposes of the Act
the Government made rule so as to fix the last date for filing the declaration forms by dealers for
getting the benefit of concessional rates on inter-State sales. This rule was held to be ultra vires
the Enabling Act on the ground that the Act empowered the Government for making rules for
prescribing the particulars to be mentioned in the forms and it was not given power to prescribe a
time-limit for filling the form.
When delegated legislation is in conflict with the Enabling or Parent Act:

When the delegated legislation is found to be directly or indirectly in conflict with the provisions
of the Enabling Act or Parent Act, it is held to be ultra vires the Enabling or Parent Act. In Delhi
Transport Undertaking v. B.R.I. Hajelay, a rule was declared Invalid on the ground that it was in
conflict with the provisions of the Enabling or Parent Act, According to Section 92 of the Delhi
Corporation Act. 1957, all persons drawing salary less than 350 rupees per month shall be
appointed only by general Manager of the Delhi Transport Undertaking. According to Section 95
of the Act, no person can be dismissed by any authority subordinate to the authority who has
appointed him. The rules made under the Act empowered the General Manager to delegate all his
powers to the Assistant General Manager. The rule was held to be In conflict with the aforesaid
provision of the Parent Act. The effect of the rule was that a person appointed by the General
Manager could be dismissed by the Assistant General Manager. i.e. a person could be dismissed
by an authority subordinate to the authority who had appointed him while Section 95 of the Act
provided that no person can be dismissed by an authority subordinate to the appointing authority.
Thus, the rule was in conflict with Section 95 of the Act. Consequently the rule was held to be
invalid.

When delegated legislation is made by authority exercising its power mala fide:

When the subordinate or delegated legislation is made by the administrative authority exercising
its power mala fide or with ulterior motive, It is held to be ultra vires and, therefore, invalid.

When the delegated legislation is unreasonable and arbitrary:

Wwhen the de1egated legislation is found unreasonable and arbitrary, it is declared invalid. In
India, in some cases to High Courts express the view that the delegated legislation cannot be
challenged on the grounds of unreasonableness. However, the view of the Courts is that the
delegated legislation may be challenged on the ground of unreasonableness and arbitrariness. In
India doctrine of unreasonableness has been given the solid base of Article 14. The delegated
legislation which is unreasonable and arbitrary can be challenged on the ground that it is
violative of Article 14.

In Air India v. Nargesh Meerza, a regulation provided that an air hostess would retire from the
service attaining the age of 35 years or on marriage within 4 years of service or on first
pregnancy, whichever occurred earlier. The regulation authorized the Managing Director to
extend the age of retirement to 45 years at his option if an air hostess was found medically fit.
The Regulation did not contain any guidelines or policy according to which the discretion
conferred on the Managing Director was to be exercised. The regulation conferred on the
Managing Director was unguided and uncontrolled discretion. The termination of service of an
air hostess on pregnancy was unreasonable and arbitrary. The regulation was held to be violative
of Article 14 as it was unreasonable and arbitrary.

Briefly stated, the principle is that the delegate cannot make a rule which is not authorized by the
parent statute. If the subordinate legislative authority keeps within the bunds of the power
delegated, the delegated legislation is valid, however, if the authority exceeds the power
delegated, then the courts will certainly declare it to be ultra vires.

Substantive ultra vires means that the rule making authority has no substantive power under the
empowering act to make rules in question. It refers to the scope, extent and range of power
conferred by the parent statute to make delegated legislation. Briefly stated, the principle is that
the delegate cannot make a rule which is not authorized by the parent statute. If the subordinate
legislative authority keeps within the scope and bounds of the power delegated, the delegated
legislation is valid; but if it fails outside the scope of the power, the courts will declare it invalid.
Delegated legislation to be valid must fall within the four corners of the powers conferred by the
statute. Declaring a rule in the Karnataka Motor Vehicle Rules, 1963, ultra vires the Motor
vehicles act, 1939, as a rule was inconsistent with a section in the act, the Supreme Court
declared in State of Karnataka v H. Ganesh Kamath that the rule making power cannot include
within its scope the power to make a rule contrary to the provisions of the Act conferring the rule
making power.

Conferment of a rule making power by an Act does not enable the rule making authority to
make a rule which travels beyond the scope of the enabling Act or which is inconsistent
therewith or repugnant thereto." As the Supreme Court has emphasized in State of U.P v
Renusagar Power Co., if the exercise of power is in the nature of subordinate legislation, the
exercise must conform to the provisions of the statute. All the conditions of the statute must be
fulfilled."

The doctrine refers to the extent, scope and range of power conferred by the parent act on the
concerned authority to make rules. Conferment of rule making power by an Act on an authority
does not enable the rule making authority to make a rule which is beyond the scope of the
enabling act, or which is inconsistent therewith or repugnant thereto.

Substantial Ultra vires & Procedural Ultra vires: a Comparison


When delegated legislation is In conflict with the procedure prescribed by the Enabling or
Parent Act

When the delegated legislation is found to be in conflict with the procedure prescribed by the
Enabling Act, it is held to be ultra vires the Enabling Act and, therefore, void. If the delegated
legislation is made without following the mandatory procedure prescribed by the Enabling or
Parent Act, It will be ultra vires the Enabling or Parent Act and, therefore, invalid. It is to be
noted that the delegated legislation will be held to be invalid on the ground only if the procedure
prescribed by the Act is mandatory. In short, if the procedure required to be complied with in
making the delegated legislation is mandatory and it is not complied with, the delegated
legislation will be held to be invalid on the ground of procedural ultra vires. If the procedure
prescribed by the Enabling Act is not mandatory but directory, its substantial compliance will be
sufficient and thus in case of substantial compliance, It will not be invalid. In Raja Buland Sugar
Co. v. Rampur Municipality, the U.P. Municipalities Act. 1916 provided that the draft rules must
be published in a local Hindi daily. The draft rules were published in a local Urdu Daily. The
Court held that what was mandatory was publication of the draft rules in a newspaper.
Publication In a Hindi daily was only directory. Consequently, the Court held that the rules could
not be held to be ultra vires the Enabling Act merely because they were published In Urdu daily,
(instead of a Hindi daily). The publication was made in substantial compliance with the manner
provided In the Act.

Test of measuring the validity of Rules

Rules have to be consistent with the provisions of the parent statute. A rule cannot enlarge the
meaning of a statutory provision. A rule has to yield to the statutory provision. If a rule goes
beyond what the section in the Act contemplates, the rule has to go. A rule is ultra vires when it
goes beyond the authority conferred on the rule making body by the relevant statute.

To be valid, a rule must fulfill two conditions, they are:

it must conform to the provisions of the statute under which it is framed; and
it must also come within the scope and purview of the rule making power of the
authority framing the rule.

If either of these two conditions is not fulfilled; the rule would be void. To apply the doctrine of
ultra vires, the court has first to interpret the statutory provisions to determine the scope of
delegation of power, then to interpret the delegated legislation in question and finally, to adjudge
whether the same is within, or without, the statutory power conferred.

Difficulty in application of the Doctrine of Ultra Vires

The efficacy of judicial control of delegated legislation is very much dependant on how broad is
the statutory formula conferring power of delegated legislation is very much dependant on how
broad is the statutory formula conferring power of delegated legislation on the delegate.

Usually, the application of the ultra vires rule becomes very difficult because of three reasons:

Powers are usually conferred in broad language.

Ordinarily, the Courts interpret the enabling provision rather broadly.

The courts adopt a deferential, rather than a critical, attitude towards delegated legislation.

In India, the test of reasonableness is applicable to delegated legislation, both on general


principles of administrative law as well as under such fundamental rights as are guaranteed under
Constitution of India.

Exclusion of judicial review

Sometimes a clause is inserted in the Enabling or Parent Act for ousting the jurisdiction of the
Courts to review the delegated legislation. This is called exclusion clause. Usually such clause
contains the words rules made shall have effect as If enacted or Included in the Act Itself or
rules made shall not be called in question in any Court. In England. in Institute of Patent
Agents v. Lord Herschel expressed the view that such provision excluded the judicial review of
the delegated legislation on the ground of ultra vires. However, In a later case, Minister of Health
v. King. Lx Paste Yabbe. the view of Lord Herscheli has not been followed. In this case, the
Court has held that inspite of the exclusion clause, the delegated legislation can be reviewed by
the Court and can be declared invalid If it is found ultra vires the Enabling or Parent Act. Thus,
in England, the present position is that Inspite of the exclusion clause, the subordinate or
delegated legislation may be challenged on the ground that they are ultra vires the Enabling Act.

In India in a few cases the Supreme Court has adopted the view expressed by Lord Herschel in
the case of Institute of Patent Agents v. Lockwood, stated above (the Supreme Court has held
that such clause will exclude the Judicial review of the delegated legislation on the ground of
ultra vires), but in some other cases, the Supreme Court has held that inspite of such exclusion
clause, the delegated legislation can be reviewed by the Court. The present position is that inspite
of such exclusion clause. the delegated legislation may be challenged before the Court on the
ground that they are ultra vires and the Court can hold the delegated legislation invalid, if it finds
them ultra vires.

Case Study

Implied limits of the Constitution are those laid down in In re Delhi Laws Act case, namely the
laying down policy and enacting that policy into a binding rule of conduct. Section 7 of the Delhi
Laws Act, 1972 delegated to the provincial government the power to extend to Delhi area with
such restriction and modification any law in force in any part of British India. Section 2 of the
Ajmer Merwaha (Extension of Laws) Act, 1947 delegated the power to the Government to
extend to the province of Ajmer-Merwaha any law in force in any other province with such
modification and restriction as it may deem fit any enactment which was in force in any part A
state. it also empowered the Govt. to repeal or amend any corresponding law which was
applicable to part C state. The legislature cannot delegate its essential legislative power to any
other agency and if it so delegates the enabling would be ultra vires of the Constitution. In the
said case the Court held that the later part of clause 2 invalid because it authorized the
administrative agency to repeal a law, which in the opinion of the Court, is an essential
legislative action.

In Indian Council of Legal Aid and Advice v Bar Council of India the Supreme Court held that: a
rule made by BCI barring qualified persons above the age of 45 years from enrollment as
advocates, as ultra vires, a sit fell outside the power of BCI conferred by it by the Advocates Act,
1961, Section 49(1).

In Additional District Magistrate (Revenue) Delhi Administration v Siri Ram the Delhi Land
Revenue Rules 1962 made under the Delhi Land Revenue Act,1954, were declared ultra vires as
being contrary to the Parent Act as well as another Act, by making the rules, the rule making
authority had exceeded the power conferred on it by the Land Reforms Act 1954.

Ajay Kumar Mukherjee v UOI is a case where Supreme Court has said that delegated legislation
ultra vires the act by cutting down the breadth of the delegation to bring it in line with the object
of the delegation of legislative power. The purpose or object of the conferment of the power
must be borne in mind.

Conclusion

Thus, to draw conclusion it can be said that if the subordinate or delegated legislation goes
beyond the scope of authority concerned on the delegate or it is in conflict with the Parent or
Enabling Act, it is called substantive ultra vires. The validity of the subordinate or delegated
legislation may be challenged before the Courts on this ground. It is a mechanism to curb down
the exploitation of power by the administrative authority as we all know that power corrupts
and absolute power corrupts absolutely". However in this field there is lack of development and
there is no substantial change in the concept all though the changing nature of the current
legislative method has widen the horizon of the power of the authority by giving them power to
act according to the need of the time, even sometimes travelling beyond the restrictions.

Doctrine of delegated legislation


Delegated legislation also referred to as secondary legislation, is legislation made by a person or
body other than Parliament. Parliament, through an Act of Parliament, can permit another person
or body to make legislation. An Act of Parliament creates the framework of a particular law and
tends only to contain an outline of the purpose of the Act. By Parliament giving authority for
legislation to be delegated it enables other persons or bodies to provide more detail to an Act of
Parliament. Parliament thereby, through primary legislation (i.e. an Act of Parliament), permit
others to make law and rules through delegated legislation. The legislation created by delegated
legislation must be made in accordance with the purposes laid down in the Act. The function of
delegated legislation is it allows the Government to amend a law without having to wait for a
new Act of Parliament to be passed. Further, delegated legislation can be used to make technical
changes to the law, such as altering sanctions under a given statute. Also, by way of an example,
a Local Authority have power given to them under certain statutes to allow them to make
delegated legislation and to make law which suits their area. Delegated legislation provides a
very important role in the making of law as there is more delegated legislation enacted each year
than there are Acts of Parliament. In addition, delegated legislation has the same legal standing
as the Act of Parliament from which it was created.

Importance of Delegated Legislation

There are several reasons why delegated legislation is important. Firstly, it avoids overloading
the limited Parliamentary timetable as delegated legislation can be amended and/or made without
having to pass an Act through Parliament, which can be time consuming. Changes can therefore
be made to the law without the need to have a new Act of Parliament and it further avoids
Parliament having to spend a lot of their time on technical matters, such as the clarification of a
specific part of the legislation. Secondly, delegated legislation allows law to be made by those
who have the relevant expert knowledge. By way of illustration, a local authority can make law
in accordance with what their locality needs as opposed to having one law across the board
which may not suit their particular area. A particular Local Authority can make a law to suit
local needs and that Local Authority will have the knowledge of what is best for the locality
rather than Parliament. Thirdly, delegated legislation can deal with an emergency situation as it
arises without having to wait for an Act to be passed through Parliament to resolve the particular
situation. Finally, delegated legislation can be used to cover a situation that Parliament had not
anticipated at the time it enacted the piece of legislation, which makes it flexible and very useful
to law-making. Delegated legislation is therefore able to meet the changing needs of society and
also situations which Parliament had not anticipated when they enacted the Act of Parliament.

Criticisms of Delegated Legislation

Delegated legislation is not without its criticisms. Firstly, it has been suggested that by having
delegated legislation to make and/or amend laws etc it lacks democracy as too much delegated
legislation is made by unelected people. Secondly, delegated legislation is subject to less
Parliamentary scrutiny than primary legislation. Parliament therefore has a lack of control over
delegated legislation and this can lead to inconsistencies in laws. In addition, delegated
legislation therefore has the potential to be used in ways which Parliament had not anticipated
when it conferred the power through the Act of Parliament. One further criticism of delegated
legislation is the lack of publicity surrounding it. When law is made by statutory instrument the
public are not normally notified of it whereas with Acts of Parliament, on the other hand, they
are widely publicised. One reason for the lack of publicity surrounding delegated legislation is
because of the volume of delegated legislation made and this results in the public not being
informed of the changes to law. There has also been concern expressed that too much law is
made through delegated legislation.

Control of Delegated Legislation

There are controls in place in relation to delegated legislation to ensure that those who make law
under it are doing it in an appropriate manner. Parliament exercises control over delegated
legislation in that when the Act of Parliament is created, Parliament stipulate in the Act of
Parliament the parameters with regard to delegated legislation. Further, there are scrutiny
committees which consider delegated legislation within a Bill as it passes through the Houses of
Parliament. Delegated legislation is also subject to control through the Court. A piece of
delegated legislation can be deemed by the Court to be ultra vires. This means that the body that
created the delegated legislation acted beyond the powers conferred to them by statute. An
example where a body would have acted ultra vires would be if the delegated legislation goes
beyond what Parliament intended or where the procedural rules to be followed in relation to the
delegated legislation have not been followed. Any Court action which is brought challenging
delegated legislation is done through the means of Judicial Review. If the Court finds that a piece
of delegated legislation is ultra vires then that legislation can be declared void.

Types of Delegated Legislation

The following are the three main types of delegated legislation:


By Laws: They are made by Local Authorities to deal with matters within their particular
locality.

Statutory Instruments: These are made by Government Ministers and they insert the detail to
Acts of Parliament. Statutory Instruments make up the majority of delegated legislation that is
made. Around 3,000 Statutory Instruments are issued each year

Orders in Council: They are made by the Queen on the advice of the Government and are usually
made when Parliament is not sitting. They can be used by the Government in emergency
situations.

Examples For Judicial Review


March 5, 2016

Judicial review refers to the courts power to review a laws adherence to the constitution. This
article will cover government laws, facts about judicial review and advertisement.

According to a report by the Congressional research service, until 2014, over 177 acts have been
deemed unconstitutional by the Supreme Court in America.

The theory of Montesquieu deals with the separation of power within the state. The theory outlines
the fact that the state must have separate branches with independent power and duty, in order to
prevent conflicts within the branches which can be caused by an overlap in their powers. For this
reason the state has three branches of government; legislation, judicial and executive. To prevent
any one of these branches from becoming a supreme power, the system must put certain checks in
place.

Within the US, a person can come across various provisions, both constitutional and statutes, that
help to keep the branches in check. The legislation, or the US Congress, introduces a bill which
can be vetoed by the executive power that is the President. The judicial branch exercises the
judicial review and has the other to annual any laws that are either unconstitutional or consistent
with the higher authority. The judicial review refers to the authority of the judiciary in state
governance, swell as a higher courts review of the proceedings of a lower court.
Examples

The power of judicial review has been applied before 1787, and the Constitutional Convention.
There are a number of prominent examples in which a judicial review was called for, and resulted
in specific laws being classed as unconstitutional.

The case of Marbury vs Madison, in 1803, was the first case in which the Supreme Court called
for a judicial review Convention in 1787. The case resulted in a range of laws being discarded and
struck down.

In the case of Dred Scott vs Sandford, 1857, the Supreme Court made a ruling against the African
American population. It deemed that they werent American citizens, and also took away their
right to sue federal courts. While extremely controversial this decision was also high significant.
The court evoked their right to a judicial review and ruled the Missouri Compromise as
unconstitutional, arguing that prohibiting slavery was not within the bounds of Congress authority.

In the case of Brown vs. Topekas Education Board, in 1954, the Supreme Court once again evoked
their right to judicial review and classed certain laws of the state as being unconstitutional; this
included the laws allowing separate schools for colored children, arguing that they would be
unequal.

In a more recent case of Arizona Free Enterprise Clubs Freedom Club PAC vs. Bennett in 2011,
the court deemed certain provisions for the funding of elections by the public as being
unconstitutional. It was decided that it violated the candidates rights, who raised private money
to campaign.
To summarize, the judicial review asserts the fact that the no ruling body is above the US
Constitution. The Supreme Courts are allowed to exercise this right, in an attempt to protect the
right of the constitution.

Scott Donald is a law student and the author of this article. During one of his minor encounters
with law, he has found services at this website very helpful.

Judicial Review in India And USA : A


Comparative Study
One of the most important features of the judiciary is the power of judicial review. Judicial
review is the power of the Supreme Court and the High Courts to examine the constitutionality
of the Acts of the Parliament and the state legislatures and executive orders both of the centre
and state governments. If it is found that any of its provisions are in violation of the provisions
of the constitution, they can be declared unconstitutional or ultra-vires of the constitution and a
law declared by the Supreme Court as unconstitutional cannot be enforced by the government.

According to Redform, Judicial review is the power of a court to enquire whether a law,
executive order or other official action conflicts with written constitution and , if the court
concludes that it does, declare it unconstitutional and void. One can find the basis for judicial
review in the writings of Alexander Hamilton, one of the framers of the American constitution
in 1789, in the Federalist. He wrote, The interpretation of the laws is the proper and peculiar
province of the courts. A constitution is in fact and must be regarded by the judges as a
fundamental law. It therefore belongs to them to ascertain its meaning and meaning of an act
passed by the legislature. He further said that if there was any conflict between the two, that is
the constitution and the law, the judges should prefer the constitution as it is supreme. This
became the basis of judicial review.

The judiciary by using this power keeps the legislative and the executive organs within the
purview of the constitution. Judicial review is an example of the functioning of separation of
powers in a modern governmental system (where the judiciary is one of three branches of
government). This principle is interpreted differently in different jurisdictions, which also have
differing views on the different hierarchy of governmental norms. As a result, the procedure and
scope of judicial review differs from country to country and state to state.

Judicial review could be understood in terms of two different legal systems The Civil Law
System and the Common Law System OR by theories on democracy the Legislative
Supremacy and the Separation of Powers theory. For instance in United Kingdom which is a
common law country, Parliamentary Supremacy has been established and thus Judicial Review
of Legislative Acts is not permitted. On the other hand in the United States of America [the
US], Constitutional Supremacy prevails. Similarly in India the Doctrine of Separation of
Powers has been held as the Basic Structure of Constitution and Constitutional Supremacy
established, permits the review of the legislative acts as well.
Origin
The doctrine of judicial review is one of the invaluable contributions of the U.S.A. to the
political theory. Its origin has been the result of a judicial decision and its continuance has been
possible due to some conventions. The concept of judicial review was developed by Chief
Justice Marshall of the American Supreme Court in the famous Marbury v. Madison case
(1803). In this case Chief Justice Marshall laid down that the judiciary has the power to
examine the laws made by the legislature. It was also declared that if any such law is found to
be in violation of the constitution, then such a law would be declared by the court as ultra-vires
of the constitution. While doing so the Supreme Court referred to Article VI, Section 2 of the
Constitution.

Objectives
Judicial review is important because laws passed need to be checked to make sure they are
constitutional. Judicial review is important because it allows the higher courts to review the
outcomes of the lower courts. It helps to check on the other branches of government. The main
importance of judicial review is to protect individual rights, to balance government powers and
to create and maintain equality to every person. The system of civil liberties that we know of
today would be very different without judicial review.

Judicial Review as formulated by Chief Justice Marshall of the American Supreme Court
had a no. of objectives:
i. To uphold the principle of the supremacy of the Constitution.
ii. To maintain federal equilibrium i.e. balance between the centre and the states.
iii. To protect the fundamental rights of the citizens.

Judicial Review in U.S.A


The US Constitution is the supreme law of the land. The Supreme Court has the power to
interpret it and preserve its supremacy by preventing its violations by the Congress and the
President. This provision has been the basis of the judicial review power of the Supreme Court.
Judicial Review " is the principle and authority which give the Supreme Court of USA the
power to reject or abrogate any law which is made by Congress or states. According to this
power Supreme Court of USA reject or abrogate any law which does not suit or conform to the
constitution of USA or apposite the constitution of USA or violate the Constitution It has come
to be recognised as the most distinctive attribute and function of the Supreme Court. As such, it
can be said Judicial Review is the power of the Supreme Court to determine the constitutional
validity of federal and state laws whenever these are challenged before it in the process of
litigation. It is the power to reject such laws as are held to be it ultra vires.

There is no clear mention of the Judicial Review power of the court in any part of the US
Constitution. Its origin has been the result of a judicial decision and its continuance has been
possible due to some conventions.

The U.S. Constitution does not mention judicial review. This power, however, was used before
1787 by courts in several of the American states to overturn laws conflicting with state
constitutions. In 1789 the Congress of the United States passed the Judiciary Act, which gave
federal courts the power of judicial review over acts of state government. This power was used
for the first time by the U.S. Supreme Court in Hilton v. Virginia (1796).

In 1803, the power of judicial review was used for the first time by the U.S. Supreme Court to
declare an act of Congress unconstitutional. Acting under the doctrine of Implied Powers, the
Supreme Court in its judgement in Marbury v. Madison case (1803), admitted its existence and
used it. In this case, Chief Justice John Marshall explained and justified the exercise of judicial
review to strike down an unconstitutional act of Congress or states. While doing so the Supreme
Court referred to Article VI, Section 2 of the Constitution which reads, This Constitution and
the laws of the United States which shall be made in pursuance thereof; and all treaties made or
which shall be made under the authority of the United States, shall be the supreme law of the
land, and the judges in every state shall be bound thereby, anything in the constitution or laws
of any state to the contrary notwithstanding. This article of the constitution was taken to mean
that the judges have the power and duty to uphold the supremacy of the Constitution by not
allowing any federal or state laws to violate its provisions. While giving judgement in this case,
which involved an interpretation of the Judiciary Act 1789, Chief Justice Marshall enunciated
this doctrine and observed that a written Constitution is superior to all other acts of
government made under it; and it is the sworn duty of federal judges to follow the constitution
and give effect only to constitutional law and determine which law prevails where there is
conflict. If a Congressional law conflicted with the Constitutional law, the court was bound to
uphold the Constitution as the highest law of land. Courts are to respect the Constitution and
the Constitution is superior to any ordinary Act of legislature. Since then the Supreme Court
has been exercising this this unique power and has declared a number of legislative powers null
and void.

After the historic judgement in the Marbury v. Madison case, the Supreme Court has been
regularly using this power. After 1803, it was used only in 1857 in the Dred Scott case. Till
today nearly 100 Congressional statutes have been declared unconstitutional by the Supreme
Court. The Court has always refused to apply judicial review to political questions.

Judicial Review is neither automatic nor mechanical. The bills passed by the Congress and the
state legislatures become operative the moment these become laws. These do not automatically
go to the court for judicial review. It is only when any law is specifically challenged or when
during the course of litigation in a case, the issue of the constitutionality of any law arises that
the conducts judicial review.

After the judicial review is conducted the Supreme Court can give 3 types of decisions.
These are as follows:
i. That the law is unconstitutional.

In this case, the law stands struck down and it ceases to operate form the date on which the
Supreme Court declares it invalid.

ii. That the law is constitutional and fair.


In this case, the law continues to operate as before without any change.

iii. That any part or some parts of the law are unconstitutional.

In this case, only the part or parts declared unconstitutional cease to operate and the rest of law
continues to operate. If, however, the part or parts declared unconstitutional are so integral to
the law that it cannot operate without them, the whole law becomes invalid.

Judicial review is done by a bench of the Supreme Court and not by a single judge. The verdict
is given by majority. Sometimes it is a majority of only a single judge.

Due process of law as the basis of judicial review


On the basis of the Fifth Amendment of the Constitution, the scope of judicial review has
become very vast. In one of its clauses, it has been laid down that the Government cannot
deprive anyone of life, liberty or property without due process of law. The term Due Process
of Law means that the life, liberty or property of the people cannot be subjected to arbitrary
and unfair limitations by the law or the executive or even by the judges in the process of
awarding punishments. In simple words, it stands for free and fair trial for meeting the ends of
justice. The Supreme Court has used this principle to determine the validity of laws. The
Supreme Court while conducting judicial review, tests (1)as to whether the law has been made
strictly in accordance with the provisions of the Constitution or not; and (2)as to whether the
law satisfies the ends of justice and meets due process of law i.e. whether it is fair and just or
not. The law is declared invalid if it fails to satisfy either of these two tests.

Limitations on the Supreme Court in respect of Judicial Review


1) The Court does not conduct judicial review over political issues.
2) While declaring a law unconstitutional the Court has to assign reasons and specify the
provisions of the Constitution that it violates.
3) The Supreme Court conducts judicial review only in cases actually brought before it. It
cannot initiate the process of its own.
4) The law declared invalid ceases to operate for the future. The work already done on its basis
continues to be valid.
5) The Court has to demonstrate clearly the unconstitutionality of the law which is sought to be
declared invalid.

Judicial Review in India


The system of judicial review is also applicable in India. Although the term Judicial Review has
not been mentioned in the Constitution, the provisions of various Articles of the Constitution of
India have conferred the power of judicial review on the Supreme Court. Accordingly the
constitutional validity of a legislative enactment or an executive order may be challenged in the
Supreme Court on the following grounds

1. Violation of fundamental rights.


2. Outside the competence of the authority which has framed it.
3. It is repugnant to the Constitutional provisions.

The Supreme Court considerably widened the scope of judicial review in India through its
judgement in Maneka Gandhis case. In this case, the Supreme Court accepted the concept of
natural justice as one essential component of law thereby importing the American concept of
due process of law into our Constitution.

In the case of Charanjit Lal v. The Union of India, Justice Mukherjee observed: The court
should prima facie lean in favour of constitutionality and should support the legislation if it is
possible to do so on any reasonable ground. In pursuance of this attitude the Supreme Court of
India has enunciated the doctrine of severability, which implies that only those portions of the
law are declared as void which are inconsistent with the provisions of the Constitution and the
rest of the law is permitted to operate. The Courts in India have exercised power of judicial
review with great restraint and attached more importance to the express words of the
Constitution rather than the spirit of the Constitution.

Judicial Review under the Constitution of India stands in a class by itself. Under the
Government of India Act of 1935, the absence of a formal Bill of Rights in the constitutional
document very effectively limited the scope of Judicial Review power to an interpretation of the
Act in the light of the division of power between the centre and the units. Under the present
Constitution of India the horizon of judicial review was in the logic of events and things,
extended appreciably beyond a formal interpretation of federal provisions.

The debates of Constituent Assembly reveal, beyond any dispute, that the judiciary was
contemplated as an extension of the Rights and an arm of the social revolution. Judicial
Review was accordingly, desired to be an essential condition for the successful implementation
and enforcement of the Fundamental Rights. Members of Constituent Assembly were agreed
upon one fundamental point that Judicial Review under the new Constitution of the U.S.A.,
where the doctrine was more an inferred than a conferred power and more implicit than
expressed through constitutional provisions.

In the Report of the abhor Committee of Supreme Court, it was recommended that a Supreme
Court with jurisdiction to decide upon the constitutional validity of acts and laws can e regarded
as a necessary implication of any federal scheme. This was eventually extended to an
interpretation of the laws and executive orders on the touchstone of the Fundamental Rights. In
the Draft Constitution of India, this power of Judicial Review in relation to fundamental rights
found formal expression in Art. 8 (2) and Art. 25 (1) & (2) which, when adopted by the nations
representatives in the Constituent Assembly on November 26, 1949, became the new Arts. 13
(2) and 32 (1) & (2), respectively, under the Constitution of India.

However there was a sharp controversy among the members of the Constituent Assembly over
the perpetually veered question of reconciling the conflicting concepts of the individuals
fundamental and basic rights and the socio-economic needs of the nation.

As a result Judicial Review, which was recognized as the basic and indispensable precondition
for safeguarding the rights and liberties of the individuals, was sought to be tempered by the
urge for building up a new society based on the concept of welfare and social righteousness.
The consequence was a drastic curtailment of the power of judicial Review of the Supreme
Court of India. The overriding need for security of the State consequent on the partition of
India and its after-math, and growing fissiparous and subversive tendencies, merely provided
further impetus to the process and made it a fait accompli. What happened as a result was that
the much debated Due Process Clause, which was previously inserted in the original Draft
Constitution, became the first casualty, and was eliminated from the purview of the Rights to
Personal Liberty. Under Art. 21 of the new Constitution of India, it was replaced by except
according to procedure established by law, and in Art. 31 (1) it was substituted by save by
authority of law.

Simultaneously with this new awakening, a cluster of provisions was incorporated into the
constitutional document so as to restrict the rights envisaged in Arts. 19, 21, and 31, and reduce
the Supreme Courts power of Judicial Review to one of formal review. Lest Judicial Review
stood in the way of social and economic progress, the door was kept wide open, through a
comparatively flexible amending procedure, to impose the ultimate will of the popular
representatives in the matter of removing constitutional limitations.

Constitution has been working for about 60 years since it is adopted, but it is indeed very
difficult to make a correct appraisal of the course and development of Judicial Review, and its
specific directions and tendencies.

The foundation of the Indian Supreme Courts Review-power was laid firmly and well in the
case of A.K. Gopalan v. State of Madras. This case not only elucidated the principle of Judicial
Review and the basis on which it would rest in future, but at the same time evolved a set off
guidelines which would eventually set the pattern for the fundamentals of judicial approach to
the Indian Constitution. Form Gopalan to Golaknath is, indeed, a long march, not only in
respect of the nature and scope of Judicial Review itself, but in regard to the impact and
consequences of such Review on the attainment of social objectives, too.

These two cases represent two distinct lines of judicial thinking, two distinct tendencies, and,
also two separate sets of social philosophy. One represents a halting, over-cautious and
tradition-bound attitude of the judiciary in restricting its own freedom of action by sticking to
the express phraseology of the Constitution, scrupulously avoiding the nations of Natural
Justice and Due Process, and construing the law in favour of the legislature; the other
represents a big, bold, and almost revolutionary effort to resurrect Judicial Review by
expanding its horizon beyond a literal interpretation of the Constitution, introducing novel
concepts like prospective overruling and convening a Constituent assembly to amend the
Fundamental Rights, and by prohibiting any legislative amendment of Fundamental Rights in
future. The Gopalan decision, while restricting the ambit of the individuals rights to freedom
and personal liberty, paved the way to the realization of the social objectives by its clear
enunciation of the principle of judicial subordination to legislative wisdom and discretion, and
by its emphasis on social control of individual liberties. The Golaknath case, while trumpeting
the individuals basic liberties as sacrosanct and transcendental, has indeed, made it almost
impossible to enact social welfare legislation.

The Supreme Court of India has used the power of judicial review in various cases. We may
refer to the Golaknath case (1967), the Bank Nationalisation case (1970), the Privy Purses
Abolition case (1971), the Keshwananda Bharti case (1973), the Minerva Mills case (1980) and
so on. However while exercising the power of judicial review, the Supreme Court has never
adopted the American practise as it is.

One of the most significant cases decided by the Supreme Court was Golakhnath case of 1967in
which the Supreme Court held that the Parliament has no right to abridge or abrogate the
Fundamental Rights granted by the Constitution through an amendment of the Constitution.
Thus it made the Fundamental Rights transcendental and superior to the constituent power of
the Parliament through its power of judicial review. The Supreme Court continued this attitude
in the Bank Nationalisation and Privy Purses cases and challenged the right of the Parliament to
curtail the fundamental rights by the Parliament. This attitude of the Supreme Court obliged the
Congress Government to effect 24th, 25th and 26th amendments in the Constitution. It also
made a bid to curtail the right of the Supreme Court to declare a law affecting Fundamental
Rights under article 14, 19 and 31 as void of the law was passed to give effect to the Directive
Principles under Article 39 (b) or (c). These amendments were challenged in the Keshwanand
Bharati case.

During the emergency a bid was made to restrict the scope of judicial review through the Forty-
Second Amendment. The power to determine the constitutional validity of the central laws was
exclusively vested in the Supreme Court and the High Courts were deprived of their right in this
regard.

The Janata Government on assumption of power made a bid to restore the powers which were
taken away from the judiciary during the emergency.by the Forty-Third Amendment passed in
December 1977 it restored to the Supreme Court pre-emergency position with regard to power
of judicial review over the laws passed by the Parliament as well as the State Legislatures.

As a result of the Supreme Court judgement of March 1994 in the case of S.R.Bommai and
others v. The Union of India, also known as Assembly dissolution case, the scope of judicial
review was further widened. In recent years the judiciary has further widened his field of
operation by declaring judicial review as a basic feature of the Constitution. Thus the Supreme
Court in India has not merely interpreted the language of the Constitution but also pronounced
on issues which involve matters of policy.

Judicial Review in India and USA :


Comparison
The scope of judicial review in India is narrower than that of what exists in USA, though the
American Constitution does not explicitly mention the concept of judicial review in any of its
provisions.

In USA the judges exercise judicial review in a very aggressive manner. If the judges think that
a particular law and the philosophy of it is not liked by the judges then, also the judiciary may
reject the law. But such a thing never happens in India. The Indian judges reject a law only on
the basis of unconstitutionality.

Moreover, it has also been seen that in USA, if a law is rejected by the Supreme Court then the
court will make a new law in its place. Although law making is not the responsibility of the
judiciary, the judiciary makes laws. Such judge-made laws are very common in USA. But in
India if a law is rejected by the Supreme Court, the Court leaves the matter of making new laws
to the legislative. This has also been described as Judicial Activism by some of the
constitutional experts.

The American Constitution provides for due process of law against that of procedure
established by law which is contained in the Indian Constitution. The difference between the
two is: the due process of law gives wide scope to the Supreme Court to grant protection to the
rights of its citizens. It can declare laws violative of these rights void not only on substantive
grounds of being unlawful, but also on procedural grounds of being unreasonable. Our Supreme
Court, while determining the constitutionality of a law, however examines only the substantive
question i.e., whether the law is within the powers of the authority concerned or not. It is not
expected to go into the question of its reasonableness, suitability or policy implications.

The American principle of judicial supremacy is also recognised in our constitutional system,
but to a limited extent. Nor do we fully follow the British Principle of parliamentary supremacy.
There are many limitations on the sovereignty of the Parliament in our country, like the written
character of the Constitution, the federalism with division of powers, the Fundamental Rights
and the Judicial Review. In effect, what exists in India is a synthesis both, that is, the American
principle of judicial supremacy and the British principle of parliamentary supremacy.

The scope of judicial review in India is somewhat circumscribed as compared to that in the
USA. In India the fundamental rights are not so broadly coded as in the USA and the limitations
there on have been stated in the constitution itself and this task has not been left to the courts.
The constitution makers adopted this strategy as they felt that the courts might find it difficult to
work out the limitations on the fundamental rights and the same better be laid down in the
constitution itself. The constitution makers also felt that the judiciary should not be raised at the
level of Super Legislature, whatever the justification for the methodology adopted by the
makers of the Constitution, the inevitable result of this has been to restrict the range of judicial
review in India.

It must, however, be conceded that the American Supreme Court has consumed its power to
interpret the constitution liberally and has made so thorough a use of the due process of law
clause that it has become more than a mere interpreter of law. It has, in fact come to occupy the
position of a maker of law and has been correctly described as a third chamber of the
legislature, indeed, as a super legislature. Of course, the US Supreme Court has assumed this
position; it has not been specifically conferred upon it by the constitution.

The framers of the Indian constitution took good care not to embody the due process of law
clause in the constitution. On the contrary, the Indian constitution refers it to procedure
established by law. It can invalidate laws if they violate provisions of the constitution but not
on the ground that they are bad laws. In other words the Indian Judiciary including the Supreme
Court is not a Third Chamber claiming the power to sit in judgement on the policy embodied in
the legislation passed by the legislature.

The power of judicial review is exercised differently in different political systems. In countries
like the United Kingdom where the constitution is largely unwritten and unitary in character and
parliament is sovereign, the courts can declare an act of parliament to be incompatible with the
constitution, but they cannot invalidate a law for being inconsistent with the constitution. In
other words, the judiciary can only interpret the constitution.

In Germany, the Constitutional Court is empowered to shoot down not only ordinary laws but
also constitutional amendments for being inconsistent with the fundamental character of the
constitution. The situation is different in countries where a written and federal constitution
limits the powers of parliament. For instance, in the USA, the Supreme Court can strike down
legislation enacted by Congress if it finds the same to be incompatible with the constitution.

However in India, there has been a long tussle between parliament and the Supreme Court on
the scope and limits of judicial review. The twenty-fourth amendment to the constitution passed
in 1971 authorised parliament to amend any provision of the constitution. However, the
Supreme Court subsequently declared that while parliament was competent to amend any
provision of the constitution, any amendment had to conform to the basic framework of the
constitution. This led the government of Prime Minister Indra Gandhi to introduce the forty-
second amendment to the constitution during the proclamation of emergency, which stripped
the apex court of the power of reviewing an amendment to the constitution. However, the forty-
third and forty-fourth amendments undid the provisions of the forty-second amendment
regarding powers of the Supreme Court to judge the validity of constitutional amendments.

Thus we see that the scope of Judicial Review in India is somewhat circumscribed as compared
to that in the U.S.A.

In India the fundamental rights are not so broadly coded as in the U.S.A and limitations there on
have been stated in the constitution itself and this task has not been left to the courts. The
constitution makers adopted this strategy as they felt that the courts might find it difficult to
work act the limitations on the fundamental rights and the same better be laid down in the
constitution itself.

The constitution makers also felt that the Judiciary should not be raised at the level of 'Super
legislature', whatever the justification for the methods logy adopted by the constitution makers,
the inevitable result of this has been to restrict the range of judicial review in India.
It must, however, be conceded that the American Supreme Court has consumed its power to
interpret the constitution liberally and has made so thorough a use of the due process of law
clause that it has become more than a more interpreter of law.

It has, in fact come to occupy the position of a maker of law and has been correctly described as
a 'third chamber of the legislature, indeed, as a super legislature. Of course, the U.S. Supreme
Court has assumed this position; it has not been specifically conferred upon it by the
constitution.

Like the American Supreme Court, the Supreme Court of India enjoys the power of Judicial
Review' and this power has been specifically recognized by the constitution. However its
authority in relation to 'judicial review of legislation is more restricted than that of the American
Supreme Court.

The framers of the Indian constitution took, good care not to embody the due process of law
clause in the constitution on the contrary, the Indian constitution refers to 'procedure established
by law' consequently, there has been no scope for the development "Alexandrowicz is not
conceived as an additional constitution maker but as a body to apply express law."

It can invalidate laws if they violate provisions of the constitution but not on the ground that
they are bad laws. In other words the Indian Judiciary including the Supreme Court is not a
Third Chamber claiming the power to sit in judgement on the policy embodied in the legislation
passed by the legislature.

Conclusion
Like the American Supreme Court, the Supreme Court of India enjoys the power of judicial
review and this power has been specifically recognised by the constitution. However, we see
that its authority in relation to judicial review of legislation is more restricted than that of the
American Supreme Court.

Though the courts have the power of judicial review, the same cannot be exercised in an
arbitrary fashion. If the law-making power of parliament is not unlimited, the courts` power to
review the laws passed by parliament is also not unlimited. Like other organs of the state, the
judiciary derives its powers from the constitution and the judges are as much under the
constitution as anyone else. They can interpret and invalidate laws but they cannot themselves
assume the law making function; nor can they confer that function on any person or institution
other than the federal or provincial legislatures. Nor can the courts make constitutional what is
manifestly unconstitutional. Sovereignty is located neither in parliament nor in the judiciary but
in the constitution itself.

Despite various shortcomings of judicial review, it cannot be denied that it has played an
important role in ensuring constitutional government in the country by keeping the centre and
the states in the respective spheres. It has also enabled the Constitution to change according to
changed conditions by imparting new meaning to the constitution. Through the exercise of this
power, the Supreme Court has protected the freedom of citizens and protected their
Fundamental Rights against encroachment by the legislative and executive wings of the
government.

There is nothing in the world which is bad or good for itself but it is its uses which make it bad
or good. This review system also has same situation. If Supreme Court use it only for country
then it is very good but if Supreme Court uses it and keeps their own interests in mind, it is
worse for country as well as countrymen.

But we know that after principle of judicial care, Supreme Court never use it against national
interests and judges keeps national interests, safety, progress and dignity in their mind instead of
their own interests or conflicts.

So we can say it is very useful and beneficial for the country of USA and also in India.
*******************
Bibliography
1. Laxmikanth M, Indian Polity for Civil Service Examinations.
2. Arora Prem, Political Science(Indian Government and Politics)
3.Ghai K.K, Indian Government and Politics.
4.Ghai K.K, Select Political System.
5.Rout B.C, Comparative Constitution.
6.Encyclopedia of Social Sciences.
7.Encyclopedia of Britanica.

#Web Sources.
# http://www.preservearticles.com/2011100314414/essay-on-the-indian-supreme-court-unlike-
the-us-supreme-court.html
# http://archives.dawn.com/archives/67335,
# http://vishwabhushan.blogspot.in/2011/09/judicial-review-concept-origin-and.html

# Prem Arora, Political Science(Indian Government and Politics),Cosmos Book Hive (P) LTD,
P.543.
# http://vishwabhushan.blogspot.in/2011/09/judicial-review-concept-origin-and.html, 21.10.13
# Prem Arora, Political Science(Indian Government and Politics),Cosmos Book Hive (P) LTD,
P.544.
# Prem Arora, Political Science(Indian Government and Politics),Cosmos Book Hive (P) LTD,
P.545.
# http://archives.dawn.com/archives/67335, 21.10.13
# http://www.preservearticles.com/2011100314414/essay-on-the-indian-supreme-court-unlike-
the-us-supreme-court.html, 21.10.13
# Prem Arora, Political Science(Indian Government and Politics),Cosmos Book Hive (P) LTD,
P.546.

THE PRINCIPLE OF LEGALITY IN SOUTH AFRICAN ADMINISTRATIVE LAW


CORA HOEXTER[]

I INTRODUCTION

In the 1970s and 1980s there was a resurgence of interest in the Rule of Law amongst South
African liberals. It was felt that the doctrine might be used to compensate, at least to some extent,
for the sovereignty of an unrepresentative Parliament and the absence of a justiciable Bill of
Rights in our legal system. Mathews,[1] probably the most prominent South African writer on
the subject, rejected what he called the bare law enforcement approach to the Rule of Law.[2]
Like Raz,[3] and for very much the same reasons, he also rejected the material justice approach
as expounded by the International Commission of Jurists.[4] However, his preferred version,
which he termed the protection of basic rights approach, was wider than Razs procedural
formulation. It was in fact a reformulation of Diceys statement of the Rule of Law with the
addition of a few fundamental rights such as freedom of conscience, speech, movement and
association.[5]

Sadly, Mathews did not live to see very much of South Africas miraculous transition from
oppressive minority rule to constitutional democracy, a process that officially began ten years
ago under the aegis of the Constitution of the Republic of South Africa Act 200 of 1993 (interim
Constitution)[6] and continues today under the final or 1996 Constitution.[7] If he had, he
might well have concluded that South Africans in general and administrative lawyers in
particular no longer needed the Rule of Law. After all the 1996 Constitution, like its predecessor,
is a voluminous document fairly bristling with human rights, including the rights to
administrative justice set out in s 33. Furthermore, s 33(3) calls for the enactment of national
legislation to give effect to these rights and to provide for judicial review of administrative
action; and that detailed national legislation has been enacted as the Promotion of Administrative
Justice Act 3 of 2000 (Administrative Justice Act). With all this explicit justification for judicial
intervention,[8] and with all this specificity, who could possibly need the generality (and indeed
the uncertainty) of the Rule of Law?

But it seems that South African administrative law does still need the Rule of Law. In what
follows I hope to explain why this is so, and how our Constitutional Courts timely recourse to a
principle of legality may be the saving of administrative law as it is applied in the courts.
Without it, we seem doomed to suffer from two closely linked tendencies that have bedevilled
judicial review in administrative matters from the start: parsimony and conceptualism. These
tendencies, first exhibited by the courts in their application of the common law, have
unfortunately been embraced by the democratic legislature as well. It has apparently failed to
appreciate that there are more subtle ways of managing the burden imposed by the principles of
good administration.

This article begins with a brief treatment of these two tendencies in the pre-democratic era. There
follows a discussion of the administrative justice clauses in both the interim and 1996
Constitutions showing that the constitutional era offered only partial solutions to the problems of
parsimony and conceptualism. In the next section I argue that the definition of administrative
action in the Administrative Justice Act tends to perpetuate the two tendencies. The article then
deals with the Constitutional Courts principle of legality (a part of the Rule of Law) and ends
with a consideration of what this principle can teach South African administrative lawyers today.

II THE PRE-DEMOCRATIC ERA: CONCEPTUALISM AND PARSIMONY

Observers often assume that any faults of South African administrative law must have been
caused by apartheid, the official policy of the National Party government that came to power in
1948. In this they are not entirely correct. Our public law of the pre-democratic era has aptly
been described as a pale reflection of the English law of a bygone age.[9] It inherited almost all
its characteristics from English law, and certainly exhibited the unfortunate features of
conceptualism and parsimony long before the middle of the twentieth century.[10] But nor are
they entirely wrong: the nightmare of apartheid made everything worse, including the laws
existing faults.

Under apartheid the unrepresentative legislature used its sovereign power to impose on South
Africans a system of institutionalised racial discrimination, routinely conferring tremendously
wide and invasive discretionary powers on government officials. Since original legislation could
not be attacked on any but the narrowest procedural grounds, administrative law review was
virtually the only method for challenging the invasion of rights. As is well known, the response
of the courts was generally feeble. There were glimmers of light, such as the judicial refusal to
capitulate to privative or ouster clauses[11] and some fairly rigorous review of delegated
legislation,[12] but for the most part the courts simply became more deferential and more
formalistic as the pre-democratic era wore on.[13] Under the state of emergency declared by the
government in the 1980s, one of our darkest periods, the courts proved largely unable or
unwilling to use administrative law to prevent the abuse of power.[14]

When I say parsimony, I mean simply the pervasive sense, apparently shared by all three
branches of the state, that administrative justice was something to be carefully hoarded and doled
out only grudgingly. This tendency seems to have been informed mainly by fears of
overburdening the administration.[15]

By conceptualism I mean a kind of formalism.[16] Broadly, formalism describes a judicial


tendency to rely on technical or mechanistic reasoning instead of substantive principle, and to
prefer formal reasons to moral, political, economic or other social considerations.[17] As Karl
Klare has observed,[18] formalistic reasoning is a strong element in South Africas legal culture
generally; and our administrative law is no exception to this.[19] Conceptualism refers more
specifically to reliance on legal concepts as a method of solving legal problems. It often entails
the assumption that the law applicable to a particular case can be discovered by simple
syllogistic reasoning,[20] since the presence or absence of the relevant concept is supposedly
the key to the case.

In South African law of the pre-democratic era, parsimony combined with conceptualism in a
way that was not only devastating for the victims of the system, but also for the development of
judicial review. The courts energies were largely directed towards a negative enterprise: finding
ways to restrict the application of principles of good administration and their obverse, the
grounds of review. The results were an all-or-nothing application of those principles, with most
victims of official action getting nothing. There was some judicial awareness of the potential
variability of the principles, but (as the examples below indicate) the sort of variability resorted
to was equally formalistic. The courts focus meant that the most fundamental, helpful and
positive question was never asked: What does administrative justice require in this case? It
meant, in fact, that hardly any effort went into the essential task of working out the appropriate
content of lawfulness, reasonableness and fairness in particular cases.

A Procedural Fairness in the Pre-Democratic Era

The courts treatment of procedural fairness (natural justice we called it then) is a good
illustration of the pre-democratic tendencies I have described above. As in other jurisdictions that
came strongly under the influence of English law, procedural fairness was regarded as something
that would somehow lose its value if applied too often. Even Schreiner JA, a judge revered by
later generations for his liberalism, was guilty of perpetuating this view. In the infamous case of
Laubscher v Native Commissioner, Piet Retief,[21] he acknowledged the importance of the audi
alteram partem principle but warned that its value would be lessened rather than increased if it
were applied outside its proper limits.[22]

This rather perverse reasoning no doubt helped to explain the courts stubborn reliance, in
Laubscher and in hundreds of other cases, on the classification of administrative functions as a
limiting device. The benefits of procedural fairness were carefully restricted to judicial and
quasi-judicial cases in which existing rights were adversely affected. This ruled out
legislative and purely administrative cases. It meant, for instance, that mere applicants, who
of course lacked existing rights but were rather hoping to acquire them, were never entitled to
procedural fairness. Preliminary decisions, because they were not final, and investigative action,
because it did not itself abolish rights, also could not be regarded as affecting existing rights
adversely; so these sorts of decisions did not attract procedural justice either.

The appellant in Laubscher was a lawyer and legal adviser to Zulu people occupying farms that
belonged to the South African Native Trust. Officials of the Native Affairs department prevented
him from visiting the Trust area, so that he was unable to consult with his clients. Several
applications for permission to enter the area were refused. The appellant applied unsuccessfully
to have these refusals set aside on review, and the case went all the way to the Appellate
Division the highest court.[23] In three separate judgments this court unanimously dismissed
the appeal. In his judgment, in which Fagan CJ and Steyn JA concurred, Schreiner JA reasoned
that the appellant

clearly had no antecedent right to go upon the property and the refusal did not prejudicially affect
his property or his liberty. Nor did it affect any legal right that he already held. It can be said to
have affected his rights only in the sense that it prevented him from acquiring the right to go on
to the property; to the same extent but no further it may be said to have involved legal
consequences to him.[24]

The decision in this case gives effect to what has been termed the deprivation theory of
administrative law, as opposed to the far more generous determination theory.[25] The former
would accord the benefits of fairness only to people whose rights are being abolished or forfeited
as a result of official action and not to people whose rights are being decided or established
(determined).

B Reasonableness in the Pre-Democratic Era

In relation to the requirement of reasonableness, the judicial fear was not so much of
overburdening the administration as of violating the separation of powers by blurring the
distinction between review and appeal.[26] However, the method the courts evolved for doling it
out was equally cheese-paring. Thus the requirement of reasonableness applied only to
legislative administrative action (delegated legislation)[27] and eventually to purely judicial
administrative action such as disciplinary decisions.[28] But the requirement never extended to
purely administrative action which was the biggest category by far, encompassing most
decisions about welfare, licensing, immigration, national security and many other areas. In the
leading case, Union Government (Minister of Mines and Industries) v Union Steel Corporation
(South Africa) Limited,[29] Stratford JA said of this purely administrative category:

[N]owhere has it been held that unreasonableness is sufficient ground for interference; emphasis
is always laid upon the necessity of the unreasonableness being so gross that something else can
be inferred from it, either that it is inexplicable except on the assumption of mala fides or
ulterior motive ... or that it amounts to proof that the person on whom the discretion is
conferred, has not applied his mind to the matter ... .

The term symptomatic unreasonableness[30] came to be used to describe this approach. In


terms of it, courts could set aside purely administrative decisions only if they were so grossly
unreasonable (later, grossly unreasonable to a striking degree)[31] as to suggest the presence of
one of the older and less revolutionary-sounding grounds of review mala fides, ulterior motive
and failure to apply the mind.

C The Decline of the Classification of Functions

The classification of functions eventually became thoroughly discredited, particularly in relation


to fairness, as the Appellate Division began to accept in the late 1980s (more than 20 years after
Ridge v Baldwin[32]) that the system was essentially unhelpful and artificial.[33] It is no mere
coincidence that at about the same time the Appellate Division officially introduced the doctrine
of legitimate expectations into South African law, thus softening its rigidity.[34] South African
judges also began to show considerable interest in the duty to act fairly as it had been expressed
in English law.[35] This duty, because it applied to all kinds of administrative actions and
decisions, seemed to offer an escape from the conceptual mess the courts had got themselves
into.

Similarly, calls for a unified ground of reasonableness were matched by mounting evidence of
the courts willingness to apply the standard for purely judicial decisions to all sorts of cases
falling outside this category.[36]
III THE CONSTITUTIONAL ERA

I have suggested that in the pre-democratic era, highly formalistic and conceptual reasoning led
to decidedly parsimonious, all-or-nothing results in South Africas administrative law. This was
unfortunate for the victims of official action, obviously, since only a few got the full benefit of
the various principles of good administration, while the vast majority of people affected by
administrative decision-making were denied the benefits of fairness and reasonableness
altogether. Less obvious, perhaps, were the damaging effects on judicial review in general.
Because the focus of the law always seemed to be on ways to limit or prevent the application of
fairness and reasonableness, the courts never seemed to deal with the crucial business of working
out the substantive content of administrative justice. Legal concepts took the place of such
substantive reasoning. They were the refuge of judges who could not bring themselves to be
explicit about the factors that really moved them.

A Section 24 of the Interim Constitution

In 1994 the picture changed dramatically when South Africans acquired rights to administrative
justice in terms of our first democratic and supreme Constitution. Like other rights in the interim
Constitution, s 24 rights were strictly guarded by the limitation clause. Rights could only be
limited by the legislature in terms of law of general application, provided that the limitation
was both reasonable and justifiable in an open and democratic society based on freedom and
equality and that it did not negate the essential content of the right.[37] But the wording of the
administrative justice clause itself revealed that the familiar fears of overburdening the
administration and violating the separation of powers were as alive as ever. The wording also
suggested that the drafters faith in conceptualism was as strong as that of the courts, and
apparently undimmed by years of living in an apartheid state.

Section 24 of the interim Constitution was very carefully calibrated.[38] It gave a right to lawful
administrative action to the widest possible category of people: all those whose rights or
interests were affected or threatened. Similarly, the right to be given reasons in writing was
extended to those whose rights or interests were affected (but not merely threatened) by
administrative action. The right to procedurally fair administrative action applied where rights or
legitimate expectations (but not mere interests) were affected or threatened. Finally, there was a
right to administrative action that was justifiable in relation to the reasons given for it code
for a right to reasonable administrative action, which had proved too rich for the drafters blood.
This particular right was extended only to those whose rights (and not legitimate expectations or
mere interests) were affected or threatened.

As is evident from this wording, the focus of administrative justice remained on concepts such as
rights. While s 24 of the interim Constitution was certainly more generous than the common
law had ever been particularly in allowing interests to feature the underlying philosophy
remained one of essential parsimony, reflecting a determination to limit the application of these
rights at all costs. The courts played along, particularly in so far as the new right to reasons was
concerned.[39] In one case the court expressed the view, obiter, that reasons would not have to
be given for a decision to hold an investigative enquiry, since the enquiry would not affect
existing rights thus seeming to ignore altogether the word interests in s 24(d).[40] In another
case the two applicants had respectively been refused a temporary residence permit and the
extension of an existing residence permit.[41] It seemed clear that neither had any right to remain
in the country, nor any legitimate expectation of remaining: the applicants had both been warned
that their permits were strictly temporary. But the court actually went so far as to say that the
applicants had failed to prove any interest in residence or continued residence.[42] They were
not, therefore, entitled to reasons under s 24(b) of the interim Constitution.

B Section 33 of the 1996 Constitution

Section 33 of the 1996 Constitution is much simpler in its design than s 24 of the interim
Constitution. Section 33(2) relies on a familiar formula, conferring the right to reasons in writing
only on those whose rights have been adversely affected by administrative action. Section 33(1),
however, grasps the nettle in a most admirable fashion: it simply gives everyone rights to
administrative action that is lawful, reasonable and procedurally fair.[43] This is remarkable,
even astonishing, when seen against the background of the common law and the wording of s 24.
At the time it seemed a miracle. It certainly appeared to betoken the end of those twin evils,
parsimony and conceptualism, at least in relation to three out of four principles of good
administration. Everyone would now enjoy lawful, fair and reasonable administrative action, if
not written reasons for that action; and the courts, realising that the burden thus imposed would
have to be managed cleverly, would surely begin to grapple with the variable content of these
principles from case to case.

Sadly, this proved to be not entirely the position. First, s 33 did not come into operation
immediately. Pending the enactment of the national legislation mandated by s 33(3), the section
had to be read as if it were s 24 of the interim Constitution.[44] This meant that the courts could
not yet throw off the fetters of rights, interests and the like. Second, the courts had already
found a new concept to engage their attention: administrative action, a term appearing in both s
24 and s 33. This concept, unknown and apparently unneeded in the pre-democratic era, soon
became a focal point of our post-democratic administrative law. The courts began to work out
what sort of action did and did not count as administrative. Third, the national legislation
envisaged by s 33(3) was enacted within the time limit set by the 1996 Constitution,[45] and it,
too, turned out to be imbued with the two evils.

IV THE CONCEPT OF ADMINISTRATIVE ACTION

A Administrative Action in the Constitutional Court

The Constitutional Court, which began functioning in 1995, was soon called upon to decide what
constituted administrative action. At once it became apparent that the Court saw no need for the
concept to be all-encompassing; and this is understandable. Administrative law review had in the
bad old days been virtually the only tool for challenging governmental action, but South Africa
had since acquired a full-scale Bill of Rights. Much of the work previously done by judicial
review in administrative law would henceforth be performed by constitutional rights such as the
right to equality[46] and the right of access to court.[47] This meant that the administrative
justice right could now afford to have a narrower area of focus. Over the nine years since then
there have been several Constitutional Court cases involving administrative action.[48] However,
of more immediate interest, there has been a particular string of cases in which the Constitutional
Court proved unwilling to classify the action in question as administrative.

In Bernstein and Others v Bester and Others NNO[49] it was not strictly necessary for the court
to decide whether the action was administrative action, and it declined to do so. The action in
question was an investigation into the affairs of a company, which was part of the process of
liquidation. Ackermann J had difficulty in fitting this into the mould of administrative action,
particularly since the investigation was not aimed at making decisions binding on others.[50]
Nel v Le Roux NO[51] concerned a statutory provision allowing for the pre-trial examination of a
person who was likely to give relevant information concerning the commission of an alleged
offence. The statute also made provision for summary sentencing where the person refused to
give evidence without just excuse. The Court found that this summary procedure was clearly
judicial and not administrative action; it was subject to appeal in the same way as a sentence
imposed in any criminal case.[52] As to the examination, the Court had grave doubts that such
an investigation amounted to administrative action, since its aim was the gathering of factual
information.[53]

In Fedsure Life Assurance v Greater Johannesburg Metropolitan Council[54] the Court held that
budgetary resolutions made by a local authority were clearly legislative and not administrative
action, since the Constitution gave such resolutions the status of original legislation.[55] In
President of the Republic of South Africa v South African Rugby Football Union[56] the Court
found that the Presidents decision to appoint a commission of inquiry to investigate the
administration of rugby was executive rather than administrative action. The relevant power was
political in character, akin to a prerogative power,[57] and it did not involve the implementation
of legislation, which is the hallmark of administrative action.[58]

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the


Republic of South Africa and Others[59] had especially interesting facts. It concerned an Act of
Parliament that regulated the sale and possession of medicines. The President, apparently acting
on incorrect advice from the Department of Health, had proclaimed the statute into force
prematurely, before various essential schedules and regulations were ready. The result was that
the Act was completely unworkable and unenforceable. For instance, it might purport to prohibit
the possession of dangerous drugs listed in Sch 3, but there was no Sch 3 and thus no list. An
urgent but unsuccessful application was launched in a High Court to have the proclamation set
aside. On appeal to a full bench,[60] the Court found for the applicants. The Court reasoned that
the President had acted beyond the scope of his powers, since the legislature could not have
intended its delegated law making power to be exercised prematurely.[61] The matter was then
referred to the Constitutional Court for confirmation.[62] This Court, too, found a creative way
(discussed under heading V below) of setting aside the proclamation; but it rejected the argument
that the Presidents decision to bring the statute into force was administrative action. The
decision, the Court said, required a political judgment, and thus lay closer to the legislative than
to the administrative process.[63]

Some of these decisions are more easily defended than others. Fedsure, one might think, is
unimpeachable, SARFU is sound, and so is Nel at least in relation to the status of the summary
sentencing procedure. Some would certainly want to quarrel with Bernstein and Nel in relation to
the investigative proceedings in those cases,[64] for the courts reasoning seems sadly
reminiscent of pre-democratic thinking. However, the most awkward decision is Pharmaceutical
Manufacturers. The Constitutional Court clearly thought so too: Chaskalson P described it as
one of those difficult cases.[65]

This case undoubtedly did involve the implementation of legislation, which SARFU depicted as
quintessential administrative action. Moreover, a proclamation of this kind, being delegated
legislation, would certainly have been reviewable at common law. To overcome these obvious
points the Court drew an artificial distinction between the proclamation itself the
implementation part and the antecedent decision to bring the statute into force the political
judgment part. As I have suggested elsewhere,[66] the distinction is problematic not only
because the proclamation itself is the only evidence of the antecedent decision, but also
because on this reasoning the making of almost any delegated legislation will require a political
judgment as to its content and timing. Indeed, on this loose usage virtually any discretionary
administrative task would involve political judgment.

The cases described above remain important because the Constitutional Courts distinctions
between administrative, judicial, legislative and executive action came to be reflected in
the Administrative Justice Act itself. As I shall indicate later on, however, some of these cases
are even more important for what they say about the principle of legality.

B Administrative Action in the Administrative Justice Act

The creation of the Administrative Justice Act represented a wonderful opportunity to get things
right in South African administrative law. One hope was that the new Act would do something
about the laws almost exclusive focus on judicial review at the expense of other methods of
controlling administrative power.[67] Another was that, building on the inspiring simplicity of s
33(1) of the 1996 Constitution, the new Act would help to change the very style of South African
administrative law. The Act would surely find ways of giving everyone their rights in
appropriate proportions and, at the very least, it would not lead the courts back to their old
formalism and their old attitude of exaggerated deference to legislature and executive.

However, the Administrative Justice Act proved disappointing in both of these respects.[68] The
final drafters seemed to take the view that the instruction in s 33(3) to promote an efficient
administration justified them in jettisoning most of the provisions relating to future reform of
the administrative system, and also in reducing the scope of the Act considerably. The Act is
terribly flawed in areas in which the old enemies of conceptualism and parsimony make a most
unwelcome reappearance. Undoubtedly the worst offender, in this regard, is the Acts definition
of administrative action.[69]

Like the constitutional right itself, to which it gives effect, the Act applies only to
administrative action. No decision or action may be reviewed in terms of the Act, and no remedy
may be granted, except in respect of administrative action. This is made abundantly clear
throughout the Act. Section 6, which lists the grounds of review, relates to judicial review of
administrative action. In turn ss 7 and 8 of the Act, which respectively deal with procedural
matters and remedies, both refer to review in terms of s 6. The concept of administrative action
is in fact the gateway to the Act, and this means that all of the statutes users aggrieved
citizens, public officials, lawyers and courts must first decide whether the action with which
they are concerned amounts to administrative action.

Given all this, one would naturally think it important for the Act to define administrative action
in a way that is both generous and easily understandable. The Project Committee of the South
African Law Commission that was charged with drafting the Act thought so; its original
definition was certainly wide and, apart from a list of exceptions felt to be necessitated by the
decisions of the Constitutional Court, fairly simple.[70] But the draft Bill it produced was
thoroughly reworked by the Portfolio Committee on Justice before being enacted, and the
ultimate version contained a definition of administrative action that is both convoluted and
conceptual. Although some of its main elements are very widely cast, others have the effect of
narrowing the definition down in a quite relentless fashion. The definition is very complicated,
too, since some of its elements are themselves defined so as to add further elements. All in all,
the definition is anything but generous and user-friendly.

In terms of the definition, administrative action means any decision, or failure to take a
decision, which adversely affects the rights of any person, which has a direct, external legal
effect, and which is not specifically excluded in the list of exceptions. The first five items in this
list are an attempt to capture the Constitutional Court decisions discussed above, and perhaps to
extend their reasoning somewhat in relation to executive, legislative and judicial functions. The
next four exclusions relate to decisions to institute or continue a prosecution; decisions of the
Judicial Service Commission concerning the appointment of judicial officers; decisions taken
under the Access to Information Act 2 of 2000; and decisions taken (or not taken) in terms of s
4(1) of the Administrative Justice Act itself.[71]

The definition of decision is an Australian import, an extremely broad one taken from the
Administrative Decisions (Judicial Review) Act 1997 (Cth) and including every conceivable sort
of decision except, it seems, the making of delegated legislation provided it is of an
administrative nature. This phrase adds an element that South Africans, at least, find somewhat
confusing. Is of an administrative nature intended simply to underscore the list of executive,
legislative and judicial exclusions or does it invite the South African courts to revert to the
classification of administrative functions? For reasons that will be apparent by now, one
fervently hopes that the courts will not treat it as the latter.

The definition retains its broad sweep when it comes to the performers of administrative action.
These include not only organs of state but also natural or juristic persons when exercising a
public power or performing a public function in terms of an empowering provision. This
provides at least part of the answer to a question that continues to puzzle administrative lawyers
in several jurisdictions whether and to what extent the actions of private bodies are reviewable.
It does not tell us when powers and functions are public ones, of course, but it is a good start.
The definition of an empowering provision itself is similarly enlightened, and encompasses not
only legislation and rules of common law and customary law but also an agreement, instrument
or other document in terms of which an administrative action was purportedly taken. This places
it beyond doubt that private bodies acting in terms of contract rather than statute are capable of
performing administrative action.
So far the definition of administrative action is not particularly objectionable except for being
unnecessarily complicated though it does throw up a couple of puzzles (Does it cover
delegated legislation?[72] What is meant by of an administrative nature?). The next elements
are more worrying. They require that the decision affect rights adversely and that it have
direct, external legal effect. Significantly, both of these were deliberate choices of the final
drafters of the Act; neither of them appeared in the draft Bill produced by the Law Commission.

The first element, and the deliberate choice of the word rights, seems to be another vote for the
use of threshold concepts and for the narrow deprivation approach that characterised the
common law. (See heading II above.) This is because it is well established in our law that
applicants ordinarily have an interest in the outcome of the application rather than a right to the
desired outcome. The intended result would seem to be the familiar one that mere applicants
simply go without. The courts are alive to ways of ameliorating this situation, I am happy to
report, but they have not yet fixed on a solution in the context of the Act itself.[73]

The requirement of direct, external legal effect[74] comes from German federal administrative
law, and certainly looks like a further vote for parsimony. In German law a direct effect is
apparently obtained only when a decision is final, so that preliminary and investigative decisions
cannot count as administrative action. External effect means that the action must be external to
the administrative agency or department itself, so that interaction between a departmental head
and an official of that department would not ordinarily be administrative action. A legal effect
is obtained in German law when subjective rights are affected.[75] However, German law
seems to follow the determination theory, so rights are affected more often than they would be
here. In the South African context it is far from clear whether the inclusion of legal effect
softens the edges of rights. The directness would seem to suggest a stricter test than the
common law doctrine of ripeness. As for external, this is a tremendous mystery. South African
law has never had trouble with applications for the review of internal matters, which is no
doubt why it has never bothered to have a term for them. The truth is that direct, external legal
effect came to the attention of the Parliamentary Portfolio Committee at a very late stage and
was added to the definition of administrative action on a whim. This is a pity, as it only increases
the opacity and intricacy of an already complicated definition. It also has the effect of reducing
the application of the Act still further.

The result is that the Act applies only to a narrow category of matters: final decisions of a non-
internal administrative nature that are made in terms of public powers or relate to public
functions, that affect rights adversely and that do not feature in the list of exclusions. Mere
applications and preliminary decisions, or final ones that affect only interests or legitimate
expectations rather than rights, do not seem to qualify. This has astonishing consequences: it
seems to mean that even the most basic requirements of lawfulness cannot be enforced in
relation to such matters. Some of them might be reviewable in terms of special statutory regimes,
of course; and decisions of private contractual bodies, such as churches and clubs, could
presumably be controlled by the common law as they always have been. But many decisions of a
public nature that would have been reviewable at common law now simply fall outside the
purview of the Act.
The Act could of course be challenged on the basis of non-compliance with the mandate to give
effect to s 33 of the 1996 Constitution; for it is surely misguided to equate the efficiency called
for by s 33(3) with parsimony.[76] Failing that, we are back to a pattern of all or nothing or at
least we would be if it were not for the principle of legality.

V THE PRINCIPLE OF LEGALITY

I have already outlined some of the most important cases in which the Constitutional Court
defined the concept of administrative action before the coming into force (and indeed, largely
before the enactment) of the Administrative Justice Act. Some of those decisions are reflected in
the Act as exclusions from the definition of administrative action. But the real interest of these
cases lies elsewhere than in the cogency of their reasoning in relation to administrative action;
for in Fedsure,[77] in SARFU[78] and in Pharmaceutical Manufacturers[79] the finding in this
regard was by no means the end of the matter. In each of these three cases the Constitutional
Court went on to rely on a constitutional principle of legality which imposed its own
requirements on the holder of the power in question.

It was in Fedsure that the Constitutional Court first identified the principle of legality and
described it as part of the doctrine of the Rule of Law but separate from the administrative
justice clause itself. The principle, it said, was not written down anywhere in particular. Rather,
in relation to action that did not constitute administrative action, such as legislation and
executive acts, it was necessarily implicit in the Constitution.[80] It was not necessary to
consider its exact ambit, such as whether the Rule of Law had greater content than this principle
of legality. The principle generally expressed the idea that the exercise of public power is only
legitimate where lawful;[81] and in this particular case it implied that the local authority had to
act within the powers lawfully conferred upon it. However, the court was evenly divided on
whether the local authority had in fact acted within its powers in resolving to levy a certain rate.

The SARFU case, it will be remembered, had to do with the Presidents appointment of a
commission of inquiry in terms of s 84(2)(f) of the 1996 Constitution. Here the content of the
principle of legality was considerably developed, with two more elements being added to it. The
fact that the Presidents conduct in this case did not constitute administrative action, the court
noted, did not mean that there were no constraints upon it.[82] On the contrary, there were
explicit requirements in the Constitution itself the Presidents decision to appoint had to be
recorded in writing and signed, for instance and there were also requirements implicit in the
Constitution. These were that the President had to act in good faith and must not misconstrue his
powers.[83] Such significant constraints were to be found not in the administrative justice
clause but throughout the Constitution.[84] They turned out not to have been breached,
however, and the court found the Presidents conduct had been perfectly lawful.

Still further development of the principle of legality took place in the Pharmaceutical
Manufacturers case. Here, too, the Presidents decision could not be classified as administrative
action; but again, there were constraints imposed by the Constitution in general. One of these
was rationality, a minimum threshold requirement applicable to the exercise of all public
power.[85] Chaskalson P, giving judgment for a unanimous court, explained it thus:
It is a requirement of the rule of law that the exercise of public power by the Executive and other
functionaries should not be arbitrary. Decisions must be rationally related to the purpose for
which the power was given, otherwise they are in effect arbitrary and inconsistent with this
requirement. It follows that in order to pass constitutional scrutiny the exercise of public power
by the Executive and other functionaries must, at least, comply with this requirement. If it does
not, it falls short of the standards demanded by our Constitution for such action.[86]

He went on to find that the Presidents decision to bring the statute into operation prematurely
had not been objectively rational.[87] While the courts could not interfere with a decision
simply because it disagreed with it, this applied only to rational decisions; and it would be
strange indeed if a Court did not have the power to set aside a decision that is so clearly
irrational.[88]

These three cases are by no means the only ones in which the Constitutional Court has placed
reliance on the Rule of Law or some version of it. In other cases this court has decided, for
instance, that the Rule of Law requires laws to be accessible, clear and general[89] and that it
prevents Parliament from acting arbitrarily or capriciously when making law.[90] The Rule of
Law also demands that judges give reasons for their decisions,[91] and it prevents people from
taking the law into their own hands.[92] The Constitutional Court has clearly not been slow to
appreciate the rich possibilities of the Rule of Law as a foundational value of our constitutional
order[93] a value that may be used to inform and supplement the written law and the written
Constitution itself, since the Rule of Law is immanent in the latter. Nor is the Constitutional
Court the only court that is alive to these possibilities. For example, in a recent case to which the
Administrative Justice Act did not apply,[94] and where there was doubt about the status of
material mistake of fact as a ground of review, a unanimous Supreme Court of Appeal resorted
to the principle of legality as expounded by the Constitutional Court. The doctrine, Cloete JA
said, requires that the power conferred on a functionary to make decisions in the public interest,
should be exercised properly, ie, on the basis of the true facts.[95]

The cases I have described will be interesting to anyone who is concerned with public power and
its use. In the final part of this article I want to suggest that they are of special interest to
administrative lawyers, and to indicate more precisely where I think that interest lies.

VI BACK TO BASICS: A LESSON FROM THE RULE OF LAW

The cases noted above show the constitutional principle of legality, part of the Rule of Law, to
be a wonderfully useful and flexible device. In the first place it operates as a residual repository
of fundamental norms about how public power ought to be used. It thus acts as a kind of safety
net, catching exercises of public power that do not qualify as administrative action. Its spread is
reassuringly wide: it covers a good deal of the area protected by the administrative justice clause.
To say that the wielders of public power must act within their powers, in good faith and without
misconstruing their powers is to summarise a considerable number of well established
administrative law grounds. The statement could easily be seen as covering all the grounds
relating to authority, delegation, jurisdiction, errors of fact and law, ulterior purpose and motive
and failure to apply the mind, including such detailed grounds as having regard to irrelevant
considerations and acting under dictation. The further requirement of objective rationality takes
one even deeper into the realm of administrative justice, for in South African law today
rationality is uncontroversially an ingredient of reasonableness.[96]

The Constitutional Courts principle of legality does not yet cover procedural fairness, of course,
and has not yet been made to require the giving of reasons by an administrator.[97] Nor does it
seem to demand proportionality, which is the other half of reasonableness[98] unless it can be
said to be irrational or a misconstruction of ones power not to give due regard to proportionality.
Nevertheless, the principle is already an extensive one; and who knows where it might go in
future? Even narrowly procedural accounts of the Rule of Law easily cover the requirements of
natural justice, for instance. Thus Raz, who is scathing about the promiscuous[99] use of the
term Rule of Law, lists the observance of natural justice as one of the most important principles
implied by the doctrine. As he puts it, [o]pen and fair hearing, absence of bias and the like are
obviously essential for the correct application of the law and thus ... to its ability to guide
action.[100] Housing the ordinary demands of administrative law within a slightly more
promiscuous account, such as that of Mathews,[101] would present no difficulty at all.

Primarily, the principle of legality is a convenient way of requiring all exercises of public power
including non-administrative action to conform to certain accepted minimum standards. It is
thus also a way of overcoming the all-or-nothing results that are dictated by the use of threshold
concepts. But in performing this important function the principle surely exposes the conceptual
traps into which we have fallen, and it shows us how to go on. At one time our courts looked to
the duty to act fairly to rescue themselves from the conceptual wilderness of the classification
of functions.[102] Similarly, we now seem to need the principle of legality to tell us that it is
perverse to spend our time working out whether decisions pass the test of administrative action.

This threshold exercise is, I would argue, largely a waste of judicial energy and effort. For one
thing, it distracts the courts attention from far more interesting questions such as what the
content of lawfulness, reasonableness and procedural fairness is in particular cases, and why it is.
These questions must be answered if the perennial problem of overburdening the administration
is ever to be solved. Furthermore, it effectively encourages courts to hide behind a screen of
reasoning about decisions and rights instead of articulating their real concerns about the case,
and quite possibly about why they feel inclined or disinclined to intervene. Instead of giving
explicit recognition to whatever feature is moving them doubts about their institutional
competence, for example the courts are actually encouraged to use code.[103] The exercise is
thus inimical to a project whose importance South African administrative lawyers are beginning
to appreciate: building a theory of deference or respect.[104]

By telling us that all exercises of public power must comply with standards such as lawfulness,
reasonableness and fairness, the principle of legality points away from all this conceptualism and
parsimony and perversity. It shows up the silliness of having two parallel systems of
administrative law instead of one.[105] It tells us not to waste our time on conceptual reasoning,
and not to be fearful of opening the floodgates, but rather to apply our minds to what
administrative justice requires in every case. And it tells us that it is, in fact, possible to give
appropriate content to lawfulness, reasonableness and fairness in individual cases. For example,
we learn that perhaps it would not be such a bad thing after all if the President had to consult
with officials in the relevant department before he proclaimed a statute into force. Such a
hearing would, in fact, have prevented the President from making the serious error that led to
the Pharmaceutical Manufacturers case.

Notwithstanding all that is explicit in our Constitution and in our legislation, we still need the
generality of the Rule of Law. Will we ever stop needing it? Perhaps when it has finally taught
us that there is no real sense in distinguishing between public and private power, and that all
power should be exercised according to certain minimum standards. Perhaps then ...

[] Professor, University of the Witwatersrand, South Africa.

[1] See especially A S Mathews, The Rule of Law A Reassessment in Ellison Kahn (ed), Fiat
Iustitia: Essays in Memory of Oliver Deneys Schreiner (1983) 294; Anthony S Mathews,
Freedom, State Security and the Rule of Law (1986) 1-30. See also John Dugard, Human Rights
and the South African Legal Order (1978) ch 3.

[2] Mathews, Freedom, State Security and the Rule of Law, above n 1, 1-3.

[3] Joseph Raz, The Rule of Law and its Virtue (1977) 93 Law Quarterly Review 195.

[4] Mathews, Freedom, State Security and the Rule of Law, above n 1, 11-14. Mathews responds
to the famous formulation of the International Commission of Jurists at Delhi in 1959. See also
International Commission of Jurists, South Africa: Human Rights and the Rule of Law (1988).

[5] Mathews, Freedom, State Security and the Rule of Law, above n 1, 15-22.

[6] The interim Constitution, which was deliberately temporary, was the product of constitutional
negotiations that took place between the government and major parties and liberation movements
from December 1991. These negotiations began at the Conference for a Democratic South Africa
(CODESA) and ended in a multi-party negotiation process. The interim Constitution was
adopted by the existing Parliament on 22 December 1993 and it entered into force on 27 April
1994. It provided that the newly constituted Parliament would also act as a Constitutional
Assembly for the purpose of drawing up a final Constitution, and it gave the Assembly two years
in which to accomplish this. In terms of chapter 5 of the interim Constitution, the final
Constitution would have to comply with 34 Constitutional Principles agreed on during the
negotiation process and contained in Sch 4 to the interim Constitution. The negotiation process
and its outcome are described more fully in Iain Currie and Johan de Waal (eds), The New
Constitutional and Administrative Law, Volume I: Constitutional Law (2001) 57-65.

[7] Constitution of the Republic of South Africa Act 108 of 1996 (1996 Constitution). The 1996
Constitution was adopted by the Constitutional Assembly on 8 May 1996. Following one
unsuccessful application to the Constitutional Court and subsequent amendments, that court
certified that the new Constitution was consistent with the Constitutional Principles in
Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996 1997
(2) SA 97 (CC). The 1996 Constitution took effect on 4 February 1997; See Currie and De Waal,
above n 6, 66-71 for a fuller description of the making of the 1996 Constitution.

[8] The express provisions of s 33 (as well as other sections of the Constitution) mean that South
Africans have become complacent observers of the debate about whether it is the ultra vires
principle or some other doctrine that justifies judicial review of administrative action in the
United Kingdom. See, eg, Christopher Forsyth (ed), Judicial Review and the Constitution (2000);
T R S Allan, The Constitutional Foundations of Judicial Review: Conceptual Conundrum or
Interpretative Inquiry? (2002) 61 Cambridge Law Journal 87; Paul Craig, Constitutional
Foundations, the Rule of Law and Supremacy (2003) Public Law 92.

[9] Lawrence Baxter, Administrative Law (1984) 34.

[10] See generally ibid, ch 1.

[11] Ouster clauses were frequently included in legislation to prevent review of action taken in
terms of or under it. The courts reasoned that illegal action was not taken in terms of the
legislation, meaning that judicial review was ousted only where there was no illegality. Famous
cases involving such reasoning include Narainsamy v Principal Immigration Officer 1923 AD
673 and Minister of Law and Order v Hurley 1986 (3) SA 568 (A), a case all the more
noteworthy because it was decided at a time of extreme judicial deference.

[12] Relying on Kruse v Johnson [1898] 2 QB 9, the courts reasoned that the legislature could
not have intended the law making powers it delegated to others to be used unreasonably or in a
discriminatory fashion even when it was patently obvious that Parliament intended exactly that.
This optimistic reasoning was no longer possible after the famous admission of Holmes JA in
Minister of the Interior v Lockhat 1961 (2) SA 587 (A) that the governments apartheid policies
were both intended to and bound to cause injustice and inequality.

[13] See generally Hugh Corder, Judges at Work: The Role and Attitudes of the South African
Appellate Judiciary, 1910-50 (1984); C F Forsyth, In Danger for Their Talents: A Study of the
Appellate Division of the Supreme Court of South Africa, 1950-80 (1985); David Dyzenhaus,
Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy
(1991); Stephen Ellmann, In a Time of Trouble: Law and Liberty in South Africas State of
Emergency (1992); David Dyzenhaus, Truth, Reconciliation and the Apartheid Legal Order
(1998).

[14] See Kate ORegan, Breaking Ground: Some Thoughts on the Seismic Shift in our
Administrative Law (2004) 121 South African Law Journal 424.

[15] In relation to fairness, see further Lawrence Baxter, Fairness and Natural Justice in English
and South African Administrative Law (1979) 96 South African Law Journal 607.

[16] Standard dictionaries describe formalism as entailing excessive adherence to prescribed


forms and use of forms without regard to inner significance. See, eg, J B Sykes, The Concise
Oxford Dictionary of Current English (based on the Oxford English Dictionary and its
Supplements) (7th ed, 1982, reprint 1985) 385.

[17] See P S Atiyah and Robert S Summers, Form and Substance in Anglo-American Law: A
Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions (1987) 1ff.

[18] Karl Klare, Legal Culture and Transformative Constitutionalism (1998) 14 South African
Journal on Human Rights 146, 166. Klare compares the cautious traditions of analysis common
to South African lawyers of all political outlooks with the more policy-based and
consequentialist reasoning of lawyers in the USA: 168. He notes that we often seem to find
persuasive or even compelling the sort of arguments that an American lawyer would find
unconvincing; that we have a relatively strong faith in the precision, determinacy and self-
revealingness of words and texts; and that our method of legal interpretation tends to be more
highly structured, technicist, literal and rule-bound than in the USA: Ibid. However, he does not
make any connection between this formalistic style and a particular political ideology. As he
points out, formalistic reasoning is quite capable of producing politically progressive results:
170.

[19] See also Cora Hoexter, Contracts in Administrative Law: Life After Formalism?
forthcoming in (2004) 121 South African Law Journal.

[20] David M Walker, The Oxford Companion to Law (1980) 266.

[21] 1958 (1) SA 546 (A) (Laubscher).

[22] Ibid 549B-C.

[23] In the constitutional era the Appellate Division became the Supreme Court of Appeal, the
highest court in non-constitutional matters, and the Constitutional Court was created as the
highest court in constitutional matters.

[24] Laubscher 1958 (1) SA 546 (A) 549E-G.

[25] Etienne Mureinik, Reconsidering Review: Participation and Accountability in T W


Bennett et al (eds), Administrative Law Reform (1993) 35, 36.

[26] See Baxter, above n 9, 476ff.

[27] See above n 12.

[28] Theron v Ring van Wellington van die NG Sendingkerk in Suid-Afrika 1976 (2) SA 1 (A).

[29] 1928 AD 220, 237.

[30] Jrold Taitz But Twas a Famous Victory (1978) Acta Juridica 109, 111.
[31] National Transport Commission v Chettys Motor Transport (Pty) Ltd 1972 (3) SA 726 (A)
735G-H.

[32] [1964] AC 40.

[33] See especially Administrator, Transvaal v Traub 1989 (4) SA 731 (A) (Traub) 763H-I;
South African Roads Board v Johannesburg City Council 1991 (4) SA 1 (A) 10J.

[34] In Traub 1989 (4) SA 731 (A).

[35] See Clive Plasket, The Fundamental Right to Just Administrative Action: Judicial Review of
Administrative Action in the Democratic South Africa (PhD thesis, Rhodes University, 2002)
402ff.

[36] See Baxter, above n 9, 499-501. See also Cora Hoexter, 1991 Supplement to Baxters
Administrative Law (1992) 45.

[37] Interim Constitution s 33. Limitation as to rights also had to be necessary whenever s 24
related to free and fair political activity.

[38] Interim Constitution, s 24: Every person shall have the right to (a) lawful administrative
action where any of his or her rights or interests is affected or threatened; (b) procedurally fair
administrative action where any of his or her rights or legitimate expectations is affected or
threatened; (c) be furnished with reasons in writing for administrative action which affects any of
his or her rights or interests unless the reasons for such action have been made public; and (d)
administrative action which is justifiable in relation to the reasons given for it where any of his
or her rights is affected or threatened.

[39] The courts certainly tended to be more consistent in their approach to reasons than in
relation to other aspects of s 24. With regard to the right to justifiable administrative action in s
24(c), for example, the courts vacillated rather wildly between the old standard of gross
unreasonableness which had surely become inappropriate by then and assertions that the
distinction between appeal and review had been done away with altogether.

[40] Podlas v Cohen and Bryden NNO 1994 (4) SA 662 (T) 675I.

[41] Xu v Minister van Binnelandse Sake; Tsang v Minister van Binnelandse Sake 1995 (1) SA
185 (T).

[42] Ibid 192F-G.

[43] 1996 Constitution s 33: (1) Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair. (2) Everyone whose rights have been adversely affected by
administrative action has the right to be given written reasons. (3) National legislation must be
enacted to give effect to these rights, and must (a) provide for the review of administrative
action by a court or, where appropriate, an independent and impartial tribunal; (b) impose a duty
on the state to give effect to the rights in subsections (1) and (2); and (c) promote an efficient
administration.

[44] 1996 Constitution sch 6 item 23 (a transitional provision).

[45] 1996 Constitution sch 6 item 23(1), required the national legislation to be enacted within
three years of the Constitutions taking effect, ie by 4 February 2000. The Promotion of
Administrative Justice Act was signed into law by the President on 3 February 2000, although it
only came into operation (and then only partially) on 30 November 2000. It is now fully in force,
but the case law has not necessarily caught up with it: there are relatively few cases that grapple
with the Act rather than the Constitution or the common law.

[46] 1996 Constitution s 9 (interim Constitution s 8).

[47] 1996 Constitution s 34 ( interim Constitution s 22).

[48] See, eg, Premier, Mpumalanga v Excecutive Committee of the Association of State-Aided
Schools, Eastern Transvaal 1999 (2) SA 91 (CC) (decision to withdraw bursaries from state
aided schools); Dawood v Minister of Home Affairs; Shalibi v Minister of Home Affairs; Thomas
v Minister of Home Affairs (Dawood) 2000 (3) SA 936 (CC) (powers to grant or extend
residence permits); Janse van Rensburg NO v Minister of Trade and Industry 2001 (1) SA 29
(CC) (powers to suspend activities of a company and freeze its assets); Permanent Secretary,
Department of Education and Welfare, Eastern Cape v Ed-U-College (PE) (Section 21) Inc 2001
(2) SA 1 (CC) (adoption of a subsidy formula and allocations made in terms of the formula).

[49] 1996 (2) SA 751 (CC) (Bernstein).

[50] Ibid [97].

[51] 1996 (3) SA 562 (CC) (Nel).

[52] Ibid [24].

[53] Ibid.

[54] 1999 (1) SA 374 (CC) (Fedsure).

[55] Ibid [33]-[45].

[56] 2000 (1) SA 1 (CC) (SARFU).

[57] See 1996 Constitution s 84(2)(f). This is the power to appoint commissions of inquiry.
Section 84(2) lists other former prerogatives, such as pardoning or reprieving offenders (s
84(2)(j)) and conferring honours (s 84(2)(k)).

[58] SARFU 2000 (1) SA 1 (CC) [142].


[59] 2000 (2) SA 674 (CC) (Pharmaceutical Manufacturers).

[60] Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of


the Republic of South Africa and Others 1999 (4) SA 788 (T).

[61] Ibid 797I.

[62] In terms of s 172(2) of the 1996 Constitution, an order of constitutional invalidity relating to
an Act of Parliament has no force unless it is confirmed by the Constitutional Court.

[63] Pharmaceutical Manufacturers 2000 (2) SA 674 (CC) [79].

[64] See Dawid van Wyk, Administrative Justice in Bernstein v Bester and Nel v Le Roux
(1997) 13 South African Journal on Human Rights 249. Ironically enough, the action in each
case would have been reviewable in terms of the pre-democratic common law. As we have seen,
however, the applicants would no doubt have been denied the benefits of fairness and
reasonableness on the ground that investigative proceedings did not adversely affect any of their
existing rights.

[65] Pharmaceutical Manufacturers 2000 (2) SA 674 (CC) [79].

[66] Cora Hoexter with Rosemary Lyster, (Iain Currie ed), The New Constitutional and
Administrative Law, Volume II: Administrative Law (2002), 95.

[67] For a discussion of the traditional (and continuing) primacy of judicial review in South
African administrative law see Cora Hoexter, The Future of Judicial Review in South African
Administrative Law (2000) 117 South African Law Journal 484, 485ff.

[68] Ibid.

[69] Other flaws include the over generous provision of loopholes for administrators who wish to
escape the duties imposed by ss 3, 4 and 5; the uncertain relationship between ss 3 (fairness in
individual cases) and 4 (fairness in cases involving the public); the fact that decisions taken
under s 4(1) of the Act are unenforceable; the lack of clarity as to whether the Act applies to
delegated legislation; a very confusing inconsistency between s 1, which insists that
administrative action can only qualify as such if it adversely affects rights, and s 3, which
requires fairness where rights or legitimate expectations are materially and adversely
affected; and a too strict duty to exhaust domestic remedies. Another problem is the absence of
any provision that is likely to lead to further reform of administrative law. In this last regard the
Act compares very unfavourably with the version produced by the South African Law
Commission. See further Hoexter, above n 67, 495-9. This is not to deny that there are some
good and even excellent provisions in the Act. For example, the treatment of procedural fairness
and the giving of reasons in ss 3, 4 and 5 of the Act is in some ways admirable: it reflects the
essential flexibility of this part of the law and may well help to educate administrators as well as
guide them. Section 3(2)(a), for instance, describes fairness as depend[ing] on the
circumstances. It sets out minimum requirements for fairness in individual cases and then
invites administrators to think about any extra ingredients (such as an oral hearing and legal
representation) that might be appropriate in serious cases.

[70] A draft Bill was appended to the South African Law Commissions Report on
Administrative Justice Project 115 (August 1999). Administrative action was defined there as
any act performed, decision taken or rule or standard made, or which should have been
performed, taken or made, by (i) an organ of state; (ii) a judicial officer; (iii) a prosecuting
agency; (iv) a natural or juristic person when exercising a public power or performing a public
function. There then followed a list of six matters excluded. This list largely aimed to reflect
what had already been decided by the Constitutional Court in relation to executive, legislative
and judicial functions. The draft Bill with its proposed definition was widely disseminated for
comment before the report was compiled. In addition, four regional workshops were held within
South Africa and the project committee also had the benefit of views expressed at a meeting of
international experts in the UK in July 1999.

[71] The last exclusion concerns fairness in cases involving the public, and it ensures that
decisions and non-decisions relating to the use of notice and comment procedures or public
inquiries are not enforceable. Only once an administrator has actually opted for a particular
procedure can it be held to that procedure.

[72] It is unfortunately unclear whether delegated legislation counts as administrative action in


terms of the Act. On one hand, the provisions of s 4 apply most obviously to such delegated
legislation. On the other, the final drafters of the Act deliberately used a definition of decision
that does not include rule-making, and they also deliberately deleted from the draft Bill several
duties relating to rule-making as well as the ground of review relating to vagueness.

[73] In Minister of Public Works v Kyalami Ridge Environmental Association 2001 (3) SA 1151
(CC) [101] but without specific reference to the Act Chaskalson P expressed the tentative
view that procedural fairness might be a requirement for administrative decisions affecting a
material interest short of an enforceable or prospective right. There is also a very bold decision
of the Supreme Court of Appeal in the case of Transnet Ltd v Goodman Brothers (Pty) Ltd 2001
(1) SA 853 (SCA) in which the court uses constitutional rights in place of the more traditional
existing right required at common law and then proceeds to use one administrative justice
right (the right to lawfulness) to trigger another (the right to reasons). On the reasoning employed
in this case, everyone inevitably has an affected right in the shape of one of the administrative
justice rights. This approach would certainly solve the problem posed by the Act, but it does so
by making nothing of the drafters deliberate choice of the word rights.

[74] Federal Law of Administrative Procedure 1976 s 35. On its meaning, see generally Rainer
Pfaff and Holger Schneider, The Promotion of Administrative Justice Act from a German
Perspective (2001) 17 South African Journal on Human Rights 59.

[75] Mahendra P Singh, German Administrative Law in Common Law Perspective (1985) 35.

[76] Administrative justice and administrative efficiency ought not to be treated as inconsistent
with each other. As Iain Currie and Jonathan Klaaren put it in The Promotion of Administrative
Justice Act Benchbook (2001), para 1.29, 31 the term efficient administration in s 33(3) can be
read to require an administration that is accountable and participatory, promoting rational,
effective and responsive (and thus, ultimately, more efficient) decision-making.

[77] Fedsure 1999 (1) SA 374 (CC).

[78] SARFU 2000 (1) SA 1 (CC).

[79] Pharmaceutical Manufacturers 2000 (2) SA 674 (CC).

[80] Fedsure 1999 (1) SA 374 (CC) [59].

[81] Ibid [56].

[82] SARFU 2000 (1) SA 1 (CC) [148].

[83] Ibid.

[84] Ibid.

[85] Pharmaceutical Manufacturers 2000 (2) SA 674 (CC) [90].

[86] Ibid [85].

[87] Ibid [90].

[88] Ibid.

[89] President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) [102]; Dawood 2000
(3) SA 936 (CC) [47].

[90] New National Party v Government of the Republic of South Africa 1999 (3) SA 191 (CC)
[19].

[91] Mphahlele v First National Bank of South Africa 1999 (2) SA 667 (CC) (Mphahlele) [12].

[92] Chief Lesapo v North West Agricultural Bank 2000 (1) SA 409 (CC) [11].

[93] The Rule of Law is explicitly listed as a foundational value in s 1 of the 1996 Constitution.
Others include human dignity, equality, non-racialism and non-sexism.

[94] Pepkor Retirement Fund v Financial Services Board 2003 (6) SA 38 (SCA), where the facts
arose before the coming into force of the Act.

[95] Ibid [59].


[96] See Cora Hoexter, Unreasonableness in the Administrative Justice Act in Claudia Lange
and Jakkie Wessels (eds), The Right to Know: South Africas Promotion of Administrative
Justice and Access to Information Acts (2004) 148, 154.

[97] See Mphahlele 1999 (2) SA 667 (CC) [12]. The Constitutional Court found, however, that
the Rule of Law requires judges not to act arbitrarily and to be accountable, ordinarily by
furnishing reasons for their decisions.

[98] See Hoexter, above n 96, 154-5.

[99] Raz, above n 3, 198.

[100] Ibid 201.

[101] Mathews, above n 1.

[102] See, above n 35, and accompanying text.

[103] See Hoexter, above n 19, where I have suggested that the use of code, or legalistic
shorthand, does not serve the values and aspirations of South Africas democratic era, and that
the real reasons for decisions should not be encoded but spelt out.

[104] See further Hoexter, above n 67, 499-513; John M Evans, Deference with a Difference:
Of Rights, Regulation and the Judicial Role in the Administrative State (2003) 120 South
African Law Journal 322; ORegan, above n 14 ; Hugh Corder, Without Deference, With
Respect: A Reply to Justice ORegan (2004) 121 South African Law Journal 438.

[105] Somewhat ironically, in Pharmaceutical Manufacturers 2000 (2) SA 674 (CC) [44]
Chaskalson P made a similar point in response to the proposition that South Africa had two
different systems of administrative-law review a common-law version and a constitutional
version, each having different requirements. There are, he said, not two systems of law but only
one, and that system is shaped by the supreme Constitution.

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Grounds for judicial review in South African


Law
3 Jul 2012 | Save | Email | Print | PDF
Prior to the promulgation of the Constitution Act No 108 of 1996 (Constitution), judicial review took
place on the common law grounds determined by the Supreme Court of Appeal by virtue of its inherent
jurisdiction and through the use of the ultra vires doctrine. The common law grounds for judicial review
were encapsulated in the catch-all phrase of the administrator's "failure to apply his mind to the
matter".

According to Tayob Kamdar, director, dispute resolution practice at Cliffe Dekker Hofmeyr law firm, the
foremost common law grounds of review are lawfulness, symptomatic unreasonableness and
procedural fairness. The common law grounds for review are fairly similar to the grounds of review
listed under the Promotion of Administrative Justice Act, No 3 of 2000 (PAJA), except that the common
law grounds are not as far-reaching or well-developed.

Grounds for judicial review

Section 33 (1) of the Constitution entitles everyone the right to administrative action that is lawful,
reasonable and procedurally fair. PAJA was enacted to give effect to the constitutional right to lawful,
reasonable and procedurally fair administrative action.

Section 6 (2)(a)-(i) of PAJA sets out the grounds for the judicial review of administrative action. They are
as follows:

Administrative action taken by an administrator when he was not authorised to do so, acted
under a delegation of power not authorised by an empowering provision or was biased or
reasonably suspected of bias [Section 6 (2)(a)].
When there is non-compliance with a mandatory and material procedure or condition that was
prescribed by an empowering provision [Section 6 (2)(b)].
Where administrative action taken that was procedurally unfair [Section 6 (2)(c)].
Where the administrative action was materially influenced by an error of law [Section 6 (2)(d)].
Where administrative action was taken for a reason not authorised by the empowering
provision, taken for an ulterior purpose or motive, if it took into account irrelevant
considerations or excluded relevant considerations, because of unauthorised or unwarranted
dictates of another person or body or in bad faith or arbitrarily or capriciously [Section 6 (2)(e)].
If the administrative action contravenes a law or is not authorised by the empowering provision
concerned or is not rationally connected to the purpose for which it was taken, the purpose of
the empowering provision or the information before the administrator or the reasons given for
it by the administrator [Section 6 (2)(f)].
Where the administrator failed to take a decision [Section 6 (2)(g) read with section 6 (3)].
Where the administrative action taken is so unreasonable that no reasonable person could have
so exercised the power or performed the function [Section 6 (2)(h)].
Where the administrative action is otherwise unconstitutional or unlawful [Section 6 (2)(i)].

In Pharmaceutical Manufacturers Association of SA & Another in re ex parte President of the Republic of


South Africa & Others 2000 (2) SA 674 (CC) at 33, the court noted that "[t]he common law principles that
previously provided the grounds for judicial review of public power have been subsumed under the
Constitution and, insofar as they might continue to be relevant to judicial review, they gain their force
from the Constitution. In the judicial review of public power, the two are intertwined and do not
constitute separate concepts".

From this, it can be inferred that PAJA has codified the common law grounds of review.

Judicial Review in United Kingdom


When one talks of Judicial Review in the context of Constitutional Law, one would think that a
necessary ingredient is a Written Constitution. Therefore, as a laymans view point, it is a review
by a competent court, regarding the validity of a law passed by the legislature on the touchstone
of the Constitution. However, this does not mean to say that the concept is not prevalent in
countries having an unwritten constitution or it cannot be comprehended in a different manner in
other branches of law. Therefore in United Kingdom, judicial review deals with public law
wherein a judge reviews the decision or an action of a public body and its lawfulness. Here the
challenge is based on an allegation that an unlawful decision has been made by the public body
and there is no adequate alternative remedy available with an individual. Thus, one needs to
understand the basis wherein the decision can be termed as unlawful and the grounds of the same
will be enumerated in the later sections.

Furthermore, though Judicial Review is an accepted norm in many scenarios, it should be


remembered that it is not without its limitations, therefore to understand this concept and its
development, one needs to go into the structure under which the courts in United Kingdom
function. Till recently, the Courts were meant to enforce the will of the Parliament, thus keeping
this in mind; it will be inconceivable to think that they were allowed to review the Acts of
Parliament itself, therefore judicial review was not present in respect of primary legislations but
only for subordinate or delegated legislations. However this position has been changing with
time, not just due to the Acts of Parliament itself but also because of the active role that the
judiciary has started taking in this respect. This Article deals with the development of the
concept as it was understood, where it stands in the modern times and also the path ahead.

Parliamentary Sovereignty: Doctrine of the British Constitution

Parliamentary Sovereignty has been regarded as the core and the most basic principle of the
British Constitution for a long time. A.V. Dicey has elaborated on the concept in great detail and
was of the view that the sovereignty of Parliament is (from a legal point of view) the dominant
characteristic of our political institutions." [1] Further, he went on to describe the doctrine
classically as:

The principle of parliamentary sovereignty means neither more nor less than this, namely, that
Parliament... has, under the English constitution, the right to make or unmake any law or
whatever; and, further, that no person or body is recognized by the law of England as having a
right to override or set aside the legislation of Parliament." [2]

Thus from an analysis of the aforementioned exposition of Parliamentary Sovereignty, one can
cull out two components. Firstly, only Parliament has the authority to enact or repeal any
legislation and secondly, no one (not even the Courts) has an authority to question the same or to
set it aside. Also it is not just the scholars or the Parliament that believes in this doctrine, but the
judiciary also abides by the principle and what the same entails. The views of the Judiciary can
be recounted by looking into various judgments and they have made it clear time and again, that
the Courts are not concerned with the making of the Acts of Parliament; their task is to merely
apply the legislation that has been passed by both the Houses and has received Royal Assent.
This approach has been crystallized with numerous decisions and the same was confirmed in
British Railways Board v. Pickin [3] wherein Lord Simon of Glaisdale stated that:

The system by which, in this country, those liable to be affected by general political decisions
have some control over the decision-making is parliamentary democracy. Its peculiar feature in
constitutional law is the sovereignty of Parliament. This involves that, contrary to what was
sometimes asserted before the 18th century, and in contradistinction to some other democratic
systems, the courts in this country have no power to declare enacted law to be invalid. It was
conceded before your Lordships (contrary to what seems to have been accepted in the Court of
Appeal) that the courts cannot directly declare enacted law to be invalid."(emphasis supplied)

Thus this view has been prevalent in United Kingdom till very recently, and though a certain
change has been brought about by some developments as will be elucidated in later sections, it
can easily be said that Parliamentary Sovereignty remains a general principle of their
constitution. However this concept has started undergoing a change in the recent times and this is
mostly due to the fact that Judges have started believing in the concept of judicial activism and
the need to check the abuse of power by the executive as well as to protect the individual rights.
In defence of Parliamentary Sovereignty, it can be said that the concept ensures that major issues
relating to public policy are decided by a democratically elected institution that are
representatives of the public and are ultimately accountable to the public. However the critics of
this concept say that it merely guarantees the use of arbitrary power of the executive. Therefore
the question always remains as to who else besides the Court can question the authority of the
Parliament and if they fail to do so, then no other recourse is left with an individual to check the
abuse of a arbitrary legislation. This was the need that was recognized in order to bring in the
enactment of Human Rights Act.

Human Rights Act, 1998: Judicial Review Brought Home

Enactment of Human Rights Act, 1998 which was passed on the basis of The European
Convention for the Protection of Human Rights and Fundamental Freedom, heralded in the new
era for Judicial Review. The White Paper of the Act [4] specifically mentions in its Introduction
that:

Although the courts will not, under the proposals in the Bill, be able to set aside Acts of the
United Kingdom Parliament, the Bill requires them to interpret legislation as far as possible in
accordance with the Convention. If this is not possible, the higher courts will be able to issue a
formal declaration to the effect that the legislative provisions in question are incompatible with
the Convention rights. It will then be up to the Government and Parliament to put matters right."
(emphasis supplied)
From its very beginning it was recognized that this rule of construction will be applied not only
to future legislations but also the past legislations in order to give effect to the Convention
Rights. Though the right to strike down the legislation was not given even to the Higher Courts
and this was primarily, due to the importance that is attached to Parliamentary Sovereignty, still
the Act provided the Courts with the power to issue a formal declaration stating the
incompatibility and the same will prompt the Government and Parliament to change the law.
Section 7 [5] of the Act gives a person the right to approach a court to get a declaration of
incompatibility or any other order as is deemed appropriate. Apart from the theoretical aspect,
the concern is in relation to its practical applicability. One needs to understand the circumstances
wherein one can ask for judicial review. Numerous declarations of incompatibility have been
made and some have resulted in amendments of the primary legislations but almost an equal
number have been overturned by the House of Lords or the Court of Appeals on an appeal by the
Home Office. An illustration of the change in the legislation can be seen in Bellinger v
Belligner [6] , wherein it was declared by the courts that Section 11(c) Matrimonial Cases Act,
1973 was incompatible with Section 8 and Section 12 in so far as it makes no provision for
recognition of gender assignment. This was remedied by the Gender Recognition Act, 2004.
However the trend is not that it favors declarations of incompatibility with a repeal or enactment
by the Parliament but there are numerous cases wherein the formal declaration has had no effect
on the Parliament. Irrespective of the pattern, enactment of this Act brought primary legislations
under the purview of judicial review as against the prior doctrine of ultra vires, wherein only
those acts or decisions were subject to judicial review which were outside the scope of authority
of the public official/body. The impact of Human Rights Act, 1998 is reflected in the words of
Lord Steyn in the case of Jackson and others v Attorney General and are as follows:

Moreover, the European Convention on Human Rights as incorporated into our law by the
Human Rights Act, 1998, created a new legal order. One must not assimilate the [European
Convention on Human Rights] with multilateral treaties of the traditional type. Instead it is a
legal order in which the United Kingdom assumes obligations to protect fundamental rights, not
in relation to other states, but towards all individuals within its jurisdiction. The classic account
given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can
now be seen to be out of place in the modern United Kingdom.(emphasis supplied) [7]

Thus Judicial Review is an accepted norm in respect of legislations in contravention of European


Convention on Human Rights and wherein a public official has made an unlawful decision. The
question that follows is on what grounds will a decision be subject to judicial review? This has
been summarized by Lord Diplock in the case of Council of Civil Services Union v Minister for
the Civil Service [8] in the following words:

Judicial Review has I think developed to a stage today when, without reiterating any analysis of
the steps by which the development has come about, one can conveniently classify under three
heads the grounds on which administrative action is subject to control by judicial review. The
first ground I would call illegality", the second irrationality" and the third procedural
impropriety". That is not to say that further development on a case by case basis may not in
course of time add further grounds."
As per this judgment, Lord Diplock elaborated on the meanings of these three heads. Illegality
would mean that the decision maker must carefully understand the law and the give effect to it, if
he has failed to do the same then it becomes a justiciable question that needs to be decided.
Irrationality according to him is something which is also known as Wednesbury principle [9] .
This is applicable when the decision is so outrageous in its defiance of logic or acceptable
standards that no reasonable person on application of mind could have reached that specific
conclusion. Lastly procedural impropriety can be defined to mean failure in observance of basic
principles of Natural Justice. [10] Thus the aforementioned grounds are the basis of judicial
review in respect of public law. However with enactment of the Human Rights Act, primary
legislation also came within the purview of judicial review, as has been established in this
section.

Fox-Hunting Case: Paving the way for the Future

Jackson and others v Attorney General [11] , can be said to be a case of constitutional
significance in the recent times. It did not just bring into question the Hunting Act, 2004 but also
Parliament Acts of 1911 and 1949. The former Act deals with hunting mammals with dogs, an
offence except in certain circumstances. This was directed especially in respect of fox hunting.
However the point of significance in this case for the purpose of this Article and also in respect
of sovereignty of the Parliament is, strictly speaking, obiter dictum but worth analyzing as they
delve into the changing mindset of their Lordships in respect of core constitutional issues. It was
also opined that as Parliament Sovereignty is a common law tradition, i.e. it was created by the
judges therefore it is also open to the judges to change the concept. Also the judges expressed a
view that the courts might have power to strike down a law if the same is incompatible with
fundamental values. Thus it can be seen as an extension of the work of judges and ever
increasing role in respect of keeping checks on the executive. However the reason that this case
has assumed significance is that this was the first time that such an opinion was expressed by
judges in their official capacity, unlike earlier times wherein it has been said that substantive
limitations should be placed on the parliament, so the courts have the power of judicial review in
respect of legislation not conforming to the fundamental rights or the rule of law, only in their
extra-judicial capacity. Also this view can be seen in judgment delivered by Lord Steyn wherein
he said:

[T]he supremacy of Parliament is still the general principle of our constitution. It is a construct
of the common law. The judges created this principle. If that is so, it is not unthinkable that
circumstances could arise where the courts may have to qualify a principle established on a
different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to
abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House
of Lords or a new Supreme Court may have to consider whether this is a constitutional
fundamental which even a sovereign Parliament acting at the behest of a complaisant House of
Commons cannot abolish." [12]

Furthermore, Lord Hope reiterated almost the same point of view in following words:

Our constitution is dominated by the sovereignty of Parliament. But Parliamentary Sovereignty


is no longer, if it ever was, absoluteIt is no longer right to say that its freedom to legislate
admits of no qualification whatever. Step by step, gradually but surely, the English principle of
the absolute legislative sovereignty of Parliament which Dicey derived from Coke and
Blackstone is being qualified."

Thus after going through the opinions expressed by Lord Hope, Lord Steyn and Baroness Hale, it
can be seen that though expressed in different manner, the line of thinking is similar in respect of
the concept of Supremacy of Parliament. Also the three judges seem to agree that Whilst, in
general, the courts lack authority to question statutes, in an extreme case (such as complete
abolition of the judicial review jurisdiction) the courts might refuse to recognize the validity of
an Act of Parliament." [13] Therefore on perusal of this decision, the question that needs to be
answered is whether the judges want an extension in their roles as against other organs of the
government or do they want to continue with the orthodox view of mere application and
interpretation of law.

Judicial Review: The Future

It is important to take into consideration the political set up of England when talking about the
future of Judicial Review as increase in the role of Courts would entail limiting the
Parliamentary Sovereignty which is absolute in some respect. This aspect of judicial review is
not dear to the Conservatives of the Nation as one of their major point in the 2004 manifesto
prior to election was repeal of Human Rights Act, 1998. This issue is still a part of ongoing
debate in England where Tories want to scrape off the Act and introduce Bill of Rights. On the
other hand the Labour Party and the Liberal Democrats are in favor of the Act as it stands, as
they are of the belief that the Act serves the purpose of Bill of Rights and is essentially the same
thing with a different name. Moreover they want to increase the scope of the Act, so it can lead
to a Written Constitution. Leaving the political views aside, even the judiciary is not in complete
favor of moving away from the concept of Parliamentary Sovereignty as can be seen through the
majority opinion in the Fox Hunting Case. As the belief is that supremacy of Parliament is one of
the pillars of modern constitution that has been completely accepted by the courts. Lord Carswell
opines that I do not, and I have no doubt your Lordships do not, have any wish to expand the
role of the judiciary at the expense of any other organ of the State or to seek to frustrate the
properly expressed wish of Parliament as contained in legislation." [14] This opinion was in fact
reiterated by various other Judges. Thus there is a clear divide that is present within judiciary
itself as regards the concept of judicial review as it exists today and an increase in its scope. It
might still be early to decide the impact on the judiciary and the Parliament, but it can easily be
said that the orthodox view of absolute Parliamentary Sovereignty cannot survive in the modern
times when every individual is concerned with the human rights and fundamental rights.

Judicial Review
In the United States, the courts have the ability to scrutinize statutes, administrative regulations,
and judicial decisions to determine whether they violate provisions of existing laws, or whether
they violate the individual State or United States Constitution. A court having judicial review
power, such as the United States Supreme Court, may choose to quash or invalidate statutes,
laws, and decisions that conflict with a higher authority. Judicial review is a part of the checks
and balances system in which the judiciary branch of the government supervises the legislative
and executive branches of the government. To explore this concept, consider the following
judicial review definition.

Definition of Judicial Review

1. Noun. The power of the U.S. Supreme Court to determine the constitutionality of laws, judicial
decisions, or acts of a government official.

Origin: Early 1800s U.S. Supreme Court

What is Judicial Review

While the authors of the U.S. Constitution were unsure whether the federal courts should have
the power to review and overturn executive and congressional acts, the Supreme Court itself
established its power of judicial review in the early 1800s with the case of Marbury v. Madison
(5 U.S. (1 Cranch) 137, 2L Ed. 60). The case arose out of the political wrangling that occurred in
the weeks before President John Adams left office for Thomas Jefferson.
The new President and Congress overturned the many judiciary appointments Adams had made
at the end of his term, and overturned the Congressional act that had increased the number of
Presidential judicial appointments. For the first time in the history of the new republic, the
Supreme Court ruled that an act of Congress was unconstitutional. By asserting that it is
emphatically the judicial branchs province to state and clarify what the law actually is, the court
assured its position and power over judicial review.

Topics Subject to Judicial Review

The judicial review process exists to help ensure no law enacted, or action taken, by the other
branches of government, or by lower courts, contradicts the U.S. Constitution. In this, the U.S.
Supreme Court is the supreme law of the land. Individual State Supreme Courts have the
power of judicial review over state laws and actions, charged with making rulings consistent
with their state constitutions. Topics that may be brought before the Supreme Court may include:

Executive actions or orders made by the President


Regulations issued by a government agency
Legislative actions or laws made by Congress
State and local laws
Judicial error

Judicial Review Example Cases

Throughout the years, the Supreme Court has made many important decisions on issues of civil
rights, rights of persons accused of crimes, censorship, freedom of religion, and other basic
human rights. Below are some notable examples.

Miranda v. Arizona (1966)

The history of modern day Miranda rights begins in 1963, when Ernesto Miranda was arrested
for, and interrogated about, the rape of an 18-year-old woman in Phoenix, Arizona. During the
lengthy interrogation, Miranda, who had never requested a lawyer, confessed and was later
convicted of rape and sent to prison. Later, an attorney appealed the case, requesting judicial
review by the Supreme Court, claiming that Ernesto Mirandas rights had been violated, as he
never knew he didnt have to speak at all with the police.

The Supreme Court, in 1966, overturned Mirandas conviction, and the court ruled that all
suspects must be informed of their right to an attorney, as well as their right to say nothing,
before questioning by law enforcement. The ruling declared that any statement, confession, or
evidence obtained prior to informing the person of their rights would not be admissible in court.
While Miranda was retried and ultimately convicted again, this landmark Supreme Court ruling
resulted in the commonly heard Miranda Rights read to suspects by police everywhere in the
country.
Weeks v. United States (1914)

Federal agents, suspecting Fremont Weeks was distributing illegal lottery chances through the
U.S. mail system, entered and searched his home, taking some of his personal papers with them.
The agents later returned to Weeks house to collect more evidence, taking with them letters and
envelopes from his drawers. Although the agents had no search warrant, seized items were used
to convict Weeks of operating an illegal gambling ring.

The matter was brought to judicial review before the U.S. Supreme Court to decide whether
Weeks Fourth Amendment right to be secure from unreasonable search and seizure, as well as
his Fifth Amendment right to not testify against himself, had been violated. The Court, in a
unanimous decision, ruled that the agents had unlawfully searched for, seized, and kept Weeks
letters. This landmark ruling led to the Exclusionary Rule, which prohibits the use of evidence
obtained in an illegal search in trial.

Plessey v. Ferguson (1869)

Having been arrested and convicted for violating the law requiring Blacks to ride in separate
train cars, Homer Plessey appealed to the Supreme Court, stating the so called Jim Crow laws
violated his 14th Amendment right to receive equal protection under the law. During the
judicial review, the state argued that Plessey and other Blacks were receiving equal treatment,
but separately. The Court upheld Plesseys conviction, and ruled that the 14th Amendment
guarantees the right to equal facilities, not the same facilities. In this ruling, the Supreme
Court created the principle of separate but equal.

United States v. Nixon (Watergate) (1974)

During the 1972 election campaign between Republican President Richard Nixon and
Democratic Senator George McGovern, the Democratic headquarters in the Watergate building
was burglarized. Special federal prosecutor Archibald Cox was assigned to investigate the
matter, but Nixon had him fired before he could complete the investigation. The new prosecutor
obtained a subpoena ordering Nixon to release certain documents and tape recordings that almost
certainly contained evidence against the President.

Nixon, asserting an absolute executive privilege regarding any communications between high
government officials and those who assist and advise them, produced heavily edited transcripts
of 43 taped conversations, asking in the same instant that the subpoena be quashed and the
transcripts disregarded. The Supreme Court first ruled that the prosecutor had submitted
sufficient evidence to obtain the subpoena, then specifically addressed the issue of executive
privilege. Nixons declaration of an absolute, unqualified Presidential privilege of immunity
from judicial process under all circumstances, was flatly rejected. In the midst of this
Watergate scandal, Nixon resigned from office just 15 days later, on August 9, 1974.
The Authority Behind Judicial Review

Interestingly, Article III of the U.S. Constitution does not specifically give the judicial branch the
authority of judicial review. It states specifically:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,
the Laws of the United States, and Treaties made, or which shall be made, under their
Authority.

This language clearly does not state whether the Supreme Court has the power to reverse acts of
Congress. The power of judicial review has been garnered by assumption of that power:

Power From the People. Alexander Hamilton, rather than attempting to prove that the Supreme
Court had the power of judicial review, simply assumed it did. He then focused his efforts on
persuading the people that the power of judicial review was a positive thing for the people of
the land.
Constitution Binding on Congress. Hamilton referred to the section that states No legislative
act, therefore, contrary to the Constitution, can be valid, and pointed out that judicial review
would be needed to oversee acts of Congress that may violate the Constitution.
The Supreme Courts Charge to Interpret the Law. Hamilton observed that the Constitution
must be seen as a fundamental law, specifically stated to be the supreme law of the land. As the
courts have the distinct responsibility of interpreting the law, the power of judicial review
belongs with the Supreme Court.

What Cases are Eligible for Judicial Review

Although one party or another is going to be unhappy with a judgment or verdict in most court
cases, not every case is eligible for appeal. In fact, there must be some legal grounds for an
appeal, primarily a reversible error in the trial procedures, or the violation of Constitutional
rights. Examples of reversible error include:

Jurisdiction. The court wrongly assumes jurisdiction in a case over which another court has
exclusive jurisdiction.
Admission or Exclusion of Evidence. The court incorrectly applies rules or laws to either admit
or deny the admission of certain vital evidence in the case. If such evidence proves to be a key
element in the outcome of the trial, the judgment may be reversed on appeal.
Jury Instructions. If, in giving the jury instructions on how to apply the law to a specific case, the
judge has applied the wrong law, or an inaccurate interpretation of the correct law, and that
error is found to have been prejudicial to the outcome of the case, the verdict may be
overturned on judicial review.

Related Legal Terms and Issues

Executive Privilege The principle that the President of the United States has the right to
withhold information from Congress, the courts, and the public, if it jeopardizes national
security, or because disclosure of such information would be detrimental to the best interests of
the Executive Branch.
Jim Crow Laws The legal practice of racial segregation in many states from the 1880s through
the 1960s. Named after a popular black character in minstrel shows, the Jim Crow laws imposed
punishments for such things as keeping company with members of another race, interracial
marriage, and failure of business owners to keep white and black patrons separated.
Judicial Decision A decision made by a judge regarding the matter or case at hand.
Overturn To change a decision or judgment so that it becomes the opposite of what it was
originally.
Search Warrant A court order that authorizes law enforcement officers or agents to search a
person or a place for the purpose of obtaining evidence or contraband for use in criminal
prosecution.

Judicial review statistics: how many cases are


there and what are they about?
The government wants to restrict judicial review cases. But how common are they anyway?
Download the data
More data journalism and data visualisations from the Guardian

Judicial Review statistics in action: Dale Farm supporter Marina Pepper sets up a table and tea setting
outside the High Court in central London last year when residents of the travellers' site applied for
judicial review against a council decision to close it. Photograph: Suzanne Plunkett/REUTERS

Judicial review statistics are suddenly controversial. The government wants to restrict access to
judicial review - which is where you can challenge an official body's decision if you think they
handled it illegally.

David Cameron said today at the CBI that cases had gone through the roof.
Back in 1998 there were four and a half thousand applications for review and that number almost
tripled in a decade. Of course some are well-founded as we saw with the West Coast mainline
decision. But let's face it: so many are completely pointless. Last year, an application was around
5 times more likely to be refused than granted.

And what is a judicial review? You can read more about Judicial Review here. Essentially, you
can challenge a decision not because you think it was wrong but if you think it wasn't taken
properly.

Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a
decision or action made by a public body. In other words, judicial reviews are a challenge to the
way in which a decision has been made, rather than the rights and wrongs of the conclusion
reached. It is not really concerned with the conclusions of that process and whether those were
'right', as long as the right procedures have been followed. The court will not substitute what it
thinks is the 'correct' decision.

A recent example, quoted by Cameron, is Virgin Rail's case against the government's decision to
hand the West Coast mainline franchise to First Group.

The government plans to:

Reduce the time limit when people can bring cases.

Charge more for reviews so people think twice about time-wasting.

And instead of giving hopeless cases up to four bites of the cherry to appeal a decision, we will
halve that to two

We've extracted the judicial review statistics from the Ministry of Justice Judicial and Court
Statistics, and we've managed to get the data going back to 2004 from the official papers archive.
Thanks to Data thanks to Christopher Hood and Ruth Dixon, Department of Politics and
International Relations, University of Oxford and a project funded by the Leverhulme Trust we
now have the data back to the 1970s.

Data thanks to Christopher Hood and Ruth Dixon, Department of Politics and International Relations,
University of Oxford, project funded by the Leverhulme Trust

Last year there were more judicial review applications than ever before - 11,200, compared to
4,207 in 2004. The vast majority of these - as they are every year - are immigration and asylum
cases, where judicial review is often used as a last resort before deportation happens.

Not all applications for judicial review are dealt with immediately - those where it's an
emergency have priority and some just take a while. This is how 2011 broke down.

And of those that do get through the process, only a very few actually win when it comes to a
decision. In 2011, it was 174 - that's 16 out of every 1,000 cases.
The full data is below - what can you do with it?

Data summary
Judicial review statistics

Click heading to sort table. Download this data


AreaYearApps receivedApps grantedApps refusedDecision: review allowed by court

SOURCE: Ministry of Justice Judicial and Court Statistics for individual years
How many judicial review cases are received by UK government departments?

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In a recent debate in Parliament, the secretary for justice Chris Grayling was
unable to provide a number when asked how many judicial review cases are brought against
government ministries. Ruth Dixon looks at the numbers, finding no evidence of an explosion of
judicial challenges to central government departments.

During a debate in parliament on 1 December, Chris Grayling (Lord Chancellor and Secretary of
State for Justice) was asked how many judicial review cases are brought against government
ministers.

Julie Hilling (Bolton West) (Lab): The right hon. Gentleman says all the time. Will he give us
a notion of how often that isonce a day, once a week, once a month? How many times have
such cases happened since April, for instance? He is giving the impression that they happen all
the time, but what does that mean?

Chris Grayling: A Minister is confronted by the practical threat of the arrival of a judicial
review case virtually every week of the year. It is happening all the time. There are pre-action
protocols all the time, and cases are brought regularly. Looking across the majority of a
Departments activities, Ministers face judicial review very regularly indeed. It happens weeks
apart rather than months apart.
The minister gave no actual numbers in his answer. So, in this post Ive looked at how many
judicial review (JR) cases were received by central government departments (ministers) over
the past few years. This analysis relates to my work in the Politics Department at Oxford. There
is a good discussion of the wider issues raised by Chris Graylings responses during that debate
by Mark Elliot on the Public Law for Everyone blog. In this post I just look at the numbers.

The number of JR cases received by each UK government department can be found in this
database of JR cases from 2007 to 2012, which lists over 57,000 JR applications, giving the
topic, defendant and outcome of each case. For this analysis, I corrected the data for
misclassifications according to this revision note. (More recent JR databases are correctly
classified, but do not report the defendants). The largest group of JR applications were
Immigration and Asylum (IA) cases (almost 10,000 in 2012, or 80 per cent of the total). In the
future IA cases will be almost entirely considered by tribunals, so Im excluding them here (and
in any case, they do not appear to be the type of case that the Justice Secretary was referring to).

There were just under 2500 non-immigration cases per year, which is shown in the graph below
and split into four broad categories of defendant: Criminal Justice System (e.g. courts, police,
prisons), Local Authorities, Central Government Departments, and Other (e.g. medical
councils, schools, NHS and tribunals).

Central government departments received fewer than 500 JR cases each year, broken down by
department as follows:
2007 2008 2009 2010 2011 2012

BIS 11 5 4 5 4 5

Cabinet Office 0 1 0 2 4 3

DCLG 38 25 20 28 23 12

DCMS 1 0 0 0 2 0

DECC 0 0 2 5 11 2

DEFRA 21 40 25 12 18 15

Department for Education 5 3 2 9 6 10

Department for Transport 6 8 5 4 2 10

Department of Health 9 11 6 11 4 6

DWP 43 37 23 18 28 31

Foreign Office 0 3 5 3 1 1

HMRC 44 39 37 39 39 51

Home Office 92 50 54 53 48 39

MOD 12 10 19 24 11 8

Ministry of Justice 123 214 250 260 247 257

Treasury 2 7 6 2 5 3

Central Government Departments Total 407 453 458 475 453 453

Only four departments received more than 15 judicial review cases in 2012. By far the most were
received by the Ministry of Justice (MoJ, 257), followed by HM Revenue & Customs (HMRC,
51), the Home Office (39) and Department for Work and Pensions (DWP, 31).
The topic Prisons made up 70 per cent of MoJ cases, Tax and VAT comprised 90 per cent
of HMRC cases; 80 per cent of DWP cases were about benefits and social security. No single
topic dominated the Home Office non-IA cases (though this department also received the vast
bulk of IA cases). The other ~20 Whitehall departments received an average of about 5 cases per
year (a few received none over the six years and dont appear in the table).

The information in the database is not detailed enough to identify the politically motivated
cases that particularly concern Chris Grayling. Planning is sometimes mentioned as an area in
which JR is used to delay important infrastructure projects. In 2012 just 10 JR cases regarding
Town and Country Planning were addressed to government departments (9 to DCLG and 1 to
DEFRA) compared with 188 addressed to local authorities.

Considering the vast numbers of government decisions that are made every year, we dont see an
explosion of judicial challenges to central government departments. The Ministry of Justice is a
clear outlier, receiving more than half of all such cases (and another large tranch of cases is
concerned with the wider criminal justice system). Perhaps the minister should look at the
quality of decision-making in his own department and its agencies before seeking to limit
judicial review.
Note: This article was originally published on Ruth Dixons blog, My Garden Pond, and gives
the views of the author, and not the position of the British Politics and Policy blog, nor of the
London School of Economics. Please read our comments policy before posting.

About the Author

Ruth Dixon has worked at the Department of Politics and International Relations at
Oxford University since 2006.

What are some examples of judicial review?


4 Answers

Brian Harris, Author of legal textbooks and historical legal studies

Answered Dec 17 2016

In the UK judicial review is a procedure whereby anyone can ask the courts to review the actions
of a public authority.

It is available on three grounds only, illegality, irrationality (or unreasonableness) and


unfairness (or impropriety as it used to be called).

For an exposition of the doctrine see the judgment of Lord Diplock in the case of Council of
Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410.

For a recent example of judicial review see the proceedings currently before the Supreme Court
in respect of the triggering of Article 50 of the European Treaty.

3.1k Views

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What is judicial review?

Lane Mandlis, Ph.D., JD from University of Alberta

Answered Feb 7

The important difference of judicial review from an appellate process through the courts is that
the review does not determine what the correct answer is or provide relief in the same manner as
an appeal might. It determines whether the decision was procedurally fair and reasonable, and if
not, it quashes the decision and sends it back to the administrative process to be dealt with fairly
and reasonably.

In Canada, judicial review is used to review otherwise final decisions of an administrative body
by the courts. The leading case in Canada on judicial review is Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817. In that case the Supreme Court of Canada
lays out the process through which the courts may review the decision of an administrative body
or the decision of an administrative officer with authority delegated by the Minister. There are
two main avenues through which an administrative decision is reviewed: procedural fairness; and
reasonableness.

In Baker, the administrative decision to deport a woman was taken without consideration of
some basic procedural fairness concepts. The Court laid out a framework for reviewing
procedural fairness in that case, while finding that the decision was not made in a procedurally
fair manner. The matter was returned to the Minister to make a decision following the outlined
framework.

There were also concerns about the attitude of the officer making the decision, whose notes
indicated that he was racist and had already decided she should be deported without considering
the impact of his decision on her minor children, some of whom who were Canadian citizens. As
her application to stay was made on compassionate grounds, his failure to consider the impact on
the family as a whole was not reasonable given the mandate of the Minister and the authority
delegated to the immigration officers.

Reasonableness in this way is judged by determining whether the decision made was within a
range of decisions that could reasonably flow from considering the mandate of the authority
delegated, the constitutional values expected to be considered in any such decision, and the
ability of the decision-maker to articulate the reasons for the decision in a manner that can be
reviewed. In determining the reasonableness of a decision the evidence used to support the
decision must be quantifiable and transparent. If the reasons are insufficient for a reviewing court
to see how the decision was made and/or to determine whether the decision was within a range
of decisions that could be expected to flow from that evidence, the decision will fail the
reasonableness test.
1.5k Views Answer requested by Jennie Cooper

Hazen Hammel, J.D. Law, University of New Mexico (1990)

Answered Dec 21 2016

As you can see by the different answers, the term judicial review means different things in
different contexts. It is judicial in comparison to something else, as when the judiciary tests
whether a law enacted by the legislature is consistent with Constitution (i.e. its a judicial
review of legislation). But it can also be a judicial review when a person is aggrieved by an
administrative decision by the government or some sort of commission set up to make public
decisions, like a zoning board, and wants to appeal it to a judge.

In the United States, judicial review of administrative actions (such as zoning boards,
employment decisions for public employees, licensing decisions for professional licenses, and on
and on) is usually limited to very narrow questions of law or evidence: (1) did the decision
comply with the law that sets up the agency? or (2) whether the agencys decision was based on
substantial evidence (which is some evidence, but not necessarily overwhelming or even good
evidence)?

Questions about whether a decision was fair (or as we lawyers like to say, arbitrary and
capricious) generally get folded back into a legal or evidentiary question. Law questions, for
example, are often about whether the right procedures were used to arrive at the decision, so
fairness is a matter of due process. If a decision is based on some relevant and material
evidence, it is generally considered fair and not arbitrary (whether the judge thinks it was a
good idea or not).

2.1k Views

Matt Howell, Former federal prosecutor; criminal defense attorney; civil litigator

Answered Aug 22 2015

The first case of judicial review was in the famous case of Marbury v Madison. In that case, when
Thomas Jefferson's Secretary of State James Madison refused to deliver to Marbury the commission that
prior President James Adams had signed appointing Marbury as a justice of the peace, Marbury decided
to sue to force that delivery. Congress had passed a statute that provided that such cases could be filed
with the Supreme Court so that is what Marbury did. The Supreme Court, however, read the
Constitution which provides that the Supreme Court has original jurisdiction (meaning that the case can
be first filed in that court) in only a very limited number of situations. This was not one of those
situation. Because the Constitution did not give the Supreme Court original jurisdiction over cases like
Marbury's, the Court held the statute that Congress had passed to violate the Constitution and
therefore to be invalid and unenforceable.

More recently, the Supreme Court judicially reviewed the Affordable Care Act (Obamacare) and came
within a hair's breadth of striking it down as unconstitutional. Other fairly recent cases include local
firearms restrictions which were held to violate the Second Amendment, internet pornography statutes
that have been held to violate the First Amendment, campaign contribution cases that have also been
held to violate the First Amendment, and abortion restrictions that violate the right to due process
under the Fifth and Fourteenth Amendments. There are very many other examples from the last fifty
years.

15.1k Views 4 Upvotes

Legislative Law and Process

by D. L. Mendis

It is with much interest that I read in the


national newspapers about a UNDP Project to
modernize the representational functions and
the legislative oversight of the Parliament of
Sri Lanka. This UN Project can be of immense
value not only to improve the functioning of
Parliament, but also to establish good
governance in Sri Lanka.

Parliament is responsible for national


legislation. Today, it is the most important
source of law. There is hardly any government activity conducted at the national, provincial
or local level without legislation. It covers areas such as welfare, commerce, communication,
human rights, environment, insurance, income tax, foreign investments, health, employment,
housing and a myriad of important areas in a rapidly changing world.

Parliament is also responsible to give legislative effect to multilateral treaties to which Sri
Lanka has become a state-party. It has enacted many implementing legislation, but there is a
long delay in the implementation of multilateral treaties relating to illicit trafficking in
narcotic drugs, money laundering, anti-corruption measures, refugees, humanitarian treaties
in comparison to many Commonwealth countries.

In the UK and other Commonwealth Parliaments, there is a parliamentary practice by which


a treaty is laid before Parliament for twenty one days, prior to their ratification/accession by
the Executive. This practice was initiated by the Under-Secretary of State Arthur Ponsonby
(1924) and recognized by Erskine May, in order to establish "open government" in foreign
affairs. This practice has not been followed consistently in Sri Lanka, but it is necessary to
revive it in appropriate circumstances, in order to enhance the representational role of
Parliament in foreign affairs.

Legislative law and process are of paramount importance to legal practitioners, civil servants,
parliamentarians and ordinary citizens. Unfortunately, it is not an area in which there is
public debate or comprehensive teaching of this subject at the Sri Lanka Law College or any
university in Sri Lanka. In order to modernize the Parliament, it is necessary to look at the
state of the legislative law and legislative process in Sri Lanka in a comparative manner.

II Legislative Law

At the outset, it is useful to define the term "legislative law". It consists of primary and
delegated legislation. Primary legislation constitutes Acts of Parliament and perhaps statutes
made by Provincial Councils. Delegated legislation constitutes regulations, rules, order, by-
laws made under primary legislation.

In terms of volume, delegated legislation, now exceed primary legislation. As far back as
1921, Sir Cecil Carr described this phenomenon in the following manner "In mere bulk the
child now dwarfs the parent". In Sri Lanka, it is easier to find a needle in a haystack than
finding a piece of delegated legislation made under an Act of Parliament.

Unfortunately, legislative oversight is poor in regard to delegated legislation, although there


is a requirement in some Parliamentary Acts to lay the delegated legislation in Parliament
and adopt the same by way of an affirmative Resolution prior to their enforcement. It is
therefore useful to establish a Parliamentary Committee on subordinate legislation, as in
other Parliaments, to enhance its legislative oversight. In his day, one of our great
constitutional experts, late Joseph A. Cooray advocated the establishment of such a
Committee to improve the oversight of Parliament.

The Statute Book contains the legislative law in a logical order. In many countries, there is a
trend to move away from bound-editions to loose-leaf-editions to make legislative law user-
friendly. In some countries the Statute Book is computerized and the amendments made to
legislative law are reflected in the computer screen immediately after their enactment. It is
said that the state of the country can be judged by the state of the Statute Book. In Sri Lanka,
the Statute Book has not been revised for the last fifty years due to some difficulties arising
from the 1972/1978 Constitutions and therefore it is not unreasonable to say that our
legislative law is in a pathetic state, although many of my former colleagues at the Legal
Draftsmans Department were responsible for impeccable Revised Editions in many parts of
the world.

II Legislative Process

The term "legislative process" has wider connotations than the term "parliamentary process".
It includes pre-parliamentary and parliamentary processes. This process deals with major
issues and problems confronting a state. It is dominated by the Government, although various
professional bodies and individuals contribute to the process indirectly. In his inaugural
address to the Organization of Professional Associations (OPA), late H.W. Jayewardene,
Q.C. spoke of the importance of the professions to the legislative process.

The legislative process can be divided into (a) Pre-Parliamentary Process, and (b)
Parliamentary Process

(a) Pre-Parliamentary Process

The pre-parliamentary process involves the preparation of legislation on the basis of


Government Policy, Cabinet Memorandum, Election Pledge or a Commission Report. It can
be divided into preparatory stage and drafting stage. Lord Thring, Ilbert Hutton, Reed
Dickerson, Grad, Thornton and many other practitioners of this arcane art have emphasized
that the preparatory stage is more important than the drafting stage, as important decisions
are made at this stage.

In the preparatory stage, legislative drafters employed by the government hold consultations
with the relevant government departments and engage in legal and practical research for the
preparation of legislation. Sir Granville Ram said "A Bill is forged on the anvil of the
draftsmans table while politicians and civil servants swing their heavy sledges". In this
context, a legislative drafter gets involved in policy issues and provides Ministers and civil
servants their expert knowledge with respect to institutions, structures and the law in an
interdisciplinary manner.

In the drafting stage, the design, composition and scrutiny are of utmost importance. In
drafting a new law, the design of the legislation contains a long title, short title, interpretative
section, substantive and administrative provision, savings, transitional and repeals. However,
this design may differ from one Bill to another depending on the contents of the Bill. In the
case of an amending Act, the design varies considerably. At all times a legislative drafter
uses the Constitution and the Interpretation Act in the same way as an engineer uses the slide
rule or the sailor uses the compass to navigate a ship in tempestuous waters. In this field, as
Tacitus said no one becomes an expert suddenly Nemo repente turpisimus fuit.

Parliamentary Drafters provide a unique service to the State. These persons are generally not
seen and never heard in the legal world in a flamboyant manner. Nonetheless, they have
interpretative skills and abilities to visualize the application of the law prospectively when
most lawyers look at the law in a retrospective manner. In the past, they were recognized for
their services and skills and were elevated to the Supreme Court. The former Chief Justice,
late H.N.G. Fernando, who hailed from the Legal Draftsmans Department, contributed
immensely to our jurisprudence.

In recent times, there have been reforms in regard to preparation and drafting of legislation.
There is a trend to seek outside views prior to preparation of legislation by way of "green"
and "white" papers, as public participation in the legislative process is of fundamental
importance. In addition, Governments provide "exposure" draft Bills for public comments.

In the UK, there is a trend to change the style of drafting. Sir William Dale has criticized the
style of UK drafting in his book titled "Legislative Drafting New Approach" by stating that
the legislative language has (a) long sentences, (b) too much detail, (c) indirect approach to
subject matter, and (d) poor arrangement. The UK Parliament appointed the Renton
Committee to report on the preparation and drafting of legislation in a manner more easily
accessible to its users. It made 121 recommendations. Similarly, there is a shift towards the
use of plain language in legislation. In Sri Lanka, there is a great need to introduce "bi-
lingualism" in the preparation and drafting of legislation, as Trudeau did for Canada in order
to comply with the spirit and letter of the 1972 and 1978 Constitutions.

(b) Parliamentary Process

The parliamentary process is regulated primarily by the Constitution. It underwent changes


by the 1972 and 1978 Constitutions. The 1972 Constitution changed the language of
legislation to Sinhala with a Tamil translation and the use of English was deleted in an
unrealistic manner. It also abolished judicial review of legislation and established a
Constitutional Court to review legislation vis-`E0-vis the Constitution prior to the
parliamentary process. The 1978 Constitution modified these changes in a realistic manner.

(The writer was the former Senior Assistant Legal Draftsman and was appointed First
Parliamentary Counsel and Head of the Parliamentary Division of the Republic of Sierra
Leone (West Africa) at the age of thirty years. Since then, he held many positions in
Commonwealth countries as Legal Adviser, Legal Draftsman and Legislation Consultant
through the UN and other international organizations.)

Parliamentary process is also regulated by Standing Orders. Any gaps in the standing orders
are generally filled by reference to the immortal works of Erskine May, and Kaul and
Shakader on Parliamentary Practice and Procedure. On the other side of the Atlantic,
Jeffersons Manual regulates Congressional procedure. Recently, I had the privilege of
accompanying the Hon. Speaker of Parliament, W.J.M. Lokubandara to the Parliaments in
Austria and Hungary where I found several Committees are established to promote consensus
for the legislative programme. Although Sri Lanka has changed to proportional
representation, it did not change the parliamentary process in line with countries that have
adopted the PR system.

Parliamentary process is the legitimating stage of the legislative process. It begins when the
Bill is published in the Gazette and by listing it after a lapse of one week in the Order Paper
of Parliament. Unless a Bill is challenged within one week as vis-`E0-vis the Constitution,
the parliamentary process is not delayed for three weeks. The first reading takes place when
the Minister in charge of the Bill presents it to parliament. In the case of urgent Bills, judicial
review by the Supreme Court takes place after the gazetting of the Bill and there is no further
delay. The second reading of the Bill is the most important aspect of the parliamentary
process. The merits and demerits of a draft Bill are debated by the Government and the
Opposition at this stage. At this stage, as Erskine May said, the whole principle is at issue
and the Bill is affirmed or denied by a vote of the House without discussing in detail its
several clauses.

At the end of the second reading, the Bill is referred to a Standing Committee or to a
Committee of the whole House to scrutinize the Bill clause by clause. At this stage,
amendments could be moved to the Bill in terms of the Standing Orders.

The scope of Committee stage amendments is controversial in many Parliaments. In the


recent Rehabilitation of Public Enterprises (Amendment) Bill (1996), the Committee stage
amendments to restrict the application of the Act to particular enterprises with retrospective
effect was opposed for constitutional reasons. Since judicial review of legislation in Sri
Lanka is not possible after the enactment of a Bill, it is necessary to ensure that Committee
Stage amendments do not conflict with the Constitution.

A Bill which has been considered by the committee goes into the third reading. At the report
stage, further amendments may be moved. After the third reading, the certificate of the
Speaker is annexed to the Bill, so that the Bill will become an Act of Parliament.

At a time when great changes are taking place in the world, it is of paramount importance to
provide parliamentarians with a Legislative Reference Service to participate effectively in the
parliamentary debates. As in the United States of America, this Legislative Reference Service
can be of immense help to parliamentarians to grapple with major global issues facing our
country with respect to globalization, limitations of a market economy, conflict resolution,
poverty alleviation, development strategies, disaster management, confidence building, good
governance, privatization and restructuring of public enterprises, with suitable legislative
precedents.

Although some parliamentarians may not be able to contribute effectively to the debate, it is
not right to insist on qualifications for parliamentarians. After all, John Major who succeeded
Margaret Thatcher as Prime Minister of Great Britain did not have any formal university
education, but did far better with his ethical values and principles than five of his Cabinet
colleagues who happened to Presidents of the Oxford Union. His Chancellor of the
Exchequer, Norman Lamont (now Lord Lamont) dragged the Conservative Party into
oblivion by pulling out of the ERM prematurely and plunging the British economy into chaos
(Black Wednesday).

III. INTERPRETATION OF LEGISLATION

This discussion is incomplete without reference to interpretation of legislation. In majority of


instances, legislative law does not create any difficulty in regard to interpretation and
application. The difficulties may arise when there is (a) a syntactic ambiguity, (b) an
inconsistency with the constitution or primary legislation, (c) vagueness, (d)
unreasonableness, absurdity or inconvenience.

When such interpretative difficulties are raised for adjudication, the Judiciary plays an
important role. It attempts to resolve these difficulties by recourse to various jurisprudential
approaches relating to statutory interpretation. These approaches are expressed in terms of
three rules. (a) Mischief Rule - This rule requires the suppression of the mischief and
advance the remedy proposed in the statute. (b) Literal Rule - This rule requires if the words
of a statute are clear, it is mandatory to follow them even though they lead to manifest
absurdity. (c) Golden Rule - This rule gives a plain meaning to the words used by the
Legislature, unless it is manifest from the general scope of the statute that injustice and
absurdity would result. In this context, as Lord Mackay of Clashfern said, Judges become
"Finishers, Refiners, and Polishers" of legislation.

The Judiciary has also adopted various presumptions and rules for interpretation of
legislation. In case of an ambiguity, it is presumed that penal and tax statutes are interpreted
in favour of the accused or the tax-payer. The Judiciary has utilized several interpretative
rules such as the eiusdem generis rule, lex specialis rule and the expressio unius exclusio
alterius est rule to avoid ambiguity. Special interpretative rules have also been evolved in
regard to interpretation of the Constitution, industrial and labour legislation. Dr. Rohan
Edirisinha has classified specific rules in regard to constitutional interpretation from a variety
of constitutional cases, wherein constitutional values are given primacy in preference to the
intention of the Legislature. Craies, Cross and Bennion have elaborated these rules in greater
detail, so that it is impossible for the Judiciary to make new laws in the guise of
interpretation.

Interpretation of legislation can be greatly enhanced by an up-to-date Interpretation Act. An


Interpretation Act can resolve a number of legislative problems relating to interpretation.
Unfortunately, in Sri Lanka, the Interpretation Act of 1901 (except for two amendments in
1972 and 1974) is a century old and needs reform by way of new provisions to deal with
knotty problems relating to temporary, spent or impugned legislation.

In many countries, there is a trend today to adopt a purposive approach to interpretation of


legislation. Under this approach, it requires that those entrusted with such task to give effect
to the purpose of any legislative or constitutional provision by reference to extrinsic aids
(such as the treaties, draft Bills and relevant documents), when such provisions are
ambiguous, obscure or leads to absurdity. Undoubtedly, this is the only way to resolve
complex interpretative difficulties when the law and politics confront each other at the
highest level to the detriment of human rights or democratic governance. It is not a subject
that can be disregarded easily or restricted only to those who are entrusted with this task.

In conclusion, it must be said that the enhancement of the representational role and the
legislative oversight of parliament can be greatly enhanced by establishing a Legislative
Reference Service. It can also be improved by establishing new Committees such as
Committee on Delegated Legislation and Committee on Consolidation of Bills by amending
the Standing Orders. All these changes are of minimal value, unless the parliamentary
process is televised and We, the people are given an opportunity to ascertain whether we
have elected our representatives in a responsible manner.

Judicial review in the United States


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Because judicial review in the United States has been a model for other countries, it is
appropriate to devote some discussion to it and to the body of constitutional law it has
produced. Despite its overwhelming importance, judicial review is not explicitly mentioned
in the U.S. Constitution; indeed, it is itself a product of judicial construction. In Marbury v.
Madison (1803), the Supreme Court ruled that, because the Constitution clearly states that it
is the supreme law of the land and because it is the province of the judiciary to uphold the
law, the courts must declare state laws and even acts of Congress null and void when they are
inconsistent with a provision of the Constitution. The same principle holds with regard to
executive actions contrary to the Constitution. Supreme Court pronouncements on questions
of constitutionality are final and binding for all other courts and governmental authorities,
whether state or federal.

In the U.S. system of judicial review, constitutional questions can be raised only in
connection with actual cases and controversies. Advisory opinions to the government are
common in other countries but are not rendered by U.S. federal courts. Although the cases
and controversies requirement has been relaxed by the Supreme Courtat least to the extent
of allowing class-action suits or allowing organizations to sue on behalf of their members
who have not personally brought suitit is still the case that courts will not decide a
constitutional question unless it is rooted in a controversy in which the parties have a direct,
personal interest. This requirement can sometimes frustrate efforts to obtain pronouncements
on disputed issues.
Although the U.S. courts are the guardians of the Constitution, they are not bound to consider
all the provisions of the Constitution justiciable. Under the doctrine of political questions,
the Supreme Court has refused at times to apply standards prescribed by or deducible from
the Constitution to issues that it believed could be better decided by the political branches of
government. Since Luther v. Borden (1849), for example, it is a matter of settled practice that
the court will not use Article IV, Section 4which provides that the states must have a
republican form of governmentto invalidate state laws; it is for Congress and the president
to decide whether a particular state government is republican in form. Many military and
foreign policy questions, such as the constitutionality of a particular war, likewise have been
considered political and therefore nonjusticiable.

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On the other hand, the political-question doctrine has not prevented the Supreme Court from
asserting its jurisdiction in cases that are politically sensitive. Thus, in United States v. Nixon
(1974), the court ruled that President Richard Nixon was required to turn over to federal
authorities the tape recordings that confirmed his complicity in the Watergate scandal. The
doctrine also did not prevent the court from intervening in the presidential election of 2000,
when it halted the recount of ballots in the disputed state of Florida and effectively confirmed
George W. Bushs victory, despite forceful arguments that, under the Constitution and
relevant federal statutes, the matter was clearly one for Florida and Congress to decide.

Judicial review is designed to be more impartial than review by other institutions of


government. This does not mean, however, that it is immune to policy considerations or to
changes in the needs and political attitudes of the people. As a matter of fact, the Supreme
Courts reading of the Constitution has itself evolved in the course of more than two
centuries, in accordance with the large transformations that have occurred in American
society.

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constitutional disputes in four main areas: the relations between the states and the national
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government to regulate the economy, and individual rights and freedoms. In each of these
areas the courts conception of the Constitution has undergone substantial changes.

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From 1789 through the Civil War era, the Supreme Court was a crucial participant in nation
building, its decisions reinforcing the newly born structures of the federal system. The
courts rulings established judicial supremacy in constitutional interpretation, gave force to
the national supremacy clause of Article VI of the Constitutionwhich declared the
Constitution the supreme law of the United Statesand laid the foundation for the power of
the federal government to intervene in the national economy by broadly interpreting its
constitutional power to regulate interstate commerce. In contrast, during the decades of
industrialization and economic growth that followed the Civil War, the court was very
skeptical of attempts at economic regulation by the federal government. Indeed, until the
Great Depression spawned the New Deal legislation of President Franklin D. Roosevelt, the
court often ruled that many areas of economic activity were matters exclusively for state
legislation or not subject to government regulation at all. After 1937, however, the court
lifted the obstacles it had previously erected to federal intervention in the economic and
social transactions of the country. Within a few years the Supreme Court established that
Congress can make laws with respect to practically all commercial matters of national
concern.

A foundation of this expansion of the governments power to intervene in the economy and
society was laid in the doctrine of federal spending power first enunciated in United States v.
Butler (1936). The outcome of this case was overtly hostile to the expansion of government
power, since the Supreme Court ruled unconstitutional a tax provision of the Agricultural
Adjustment Act of 1933 that was designed to encourage limitation of production. However,
the lasting contribution of the decision emerged from the Supreme Courts conclusion that
the Constitution gives Congress a general and broad power to tax and spend in support of the
general welfare. As a further example, the new interpretation of the commerce clause laid
down in Wickard v. Filburn (1942) upheld the federal governments right to enforce quotas
on the production of agricultural products in virtually all circumstances, even when, as in this
case, a farmer exceeding his quotaby an admittedly sizable amount of wheatproclaimed
his intention to consume all his excess production, thereby preventing it from entering
interstate commerce at all.

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In the area of separation of federal powers, the court gradually came to support a substantial
transfer of powers to the executive and to administrative agencies. Because Article I, Section
1 of the Constitution confers all legislative powers upon Congress, the court at first ruled that
such powers cannot be delegated by Congress to the executive. This doctrine was much
diluted in the 20th century, when it became clear that delegated legislation was necessary to
administer a mixed economy. The courts generally favourable attitude toward enhancing the
powers of the executive branch has manifested itself in other areas as well, notably in the
field of foreign affairs. Nevertheless, the court has set important limits on the powers of the
president. It has ruled, for example, that the president does not have an inherent power to
seize steel mills in time of war (Youngstown Sheet & Tube Co. v. Sawyer, 1952) and that the
prerogative of the president to keep confidential records secret must yield to the need of the
judiciary to enforce criminal justice if the secret is not strictly related to military or
diplomatic matters (United States v. Nixon, 1974).

Until the New Deal, the court used the provisions of the Constitution concerning individual
rights and freedoms primarily to protect property and economic liberties against state and
federal efforts to interfere with the market. Thus, it often used the due process clause of the
Fifth and Fourteenth amendments (no person shall be deprived of life, liberty, or property,
without due process of law) to invalidate social legislation, such as laws establishing
minimum or maximum working hours. In contrast, the courts agenda is now dominated by
litigation directly raising questions involving civil and political rights and freedoms, as well
as individual equality before the law. Due process claims focus primarily on procedural
rights in criminal and administrative areas. In the mid-20th century, during a period of
expansion of individual rights, the court declared unconstitutional racial segregation in the
schools (Brown v. Board of Education of Topeka, 1954) and malapportionment in electoral
districts (Baker v. Carr, 1962; Wesberry v. Sanders, 1964) and strengthened the rights of
criminal defendants and the accused (Mapp v. Ohio, 1961; Miranda v. Arizona, 1966). The
court also recognized a constitutional right to privacy (Griswold v. State of Connecticut,
1965), which became the foundation for the right of a woman to obtain an abortion (Roe v.
Wade, 1973; Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992). Beginning
in the 1970s, the court was less willing to support litigant claims that would further expand
individual rights and freedoms, though for the most part it did not significantly restrict them.

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Through more than two centuries of judicial review, the U.S. Supreme Court typically has
supported the values of the prevailing political ideology against challenges from the states or
other branches of the federal government. Indeed, it has often been said that the court
conducts judicial review by following election returns and public opinion polls. Although
there is considerable insight in this observation, it is not true that the court simply tailors its
decisions to comport with the political views of the electoral majority. At times, as in the
early 20th century, the courts view of economic legislation was out of step with the views of
the electorate, the other federal branches, and some states. In the 1950s and early 60s the
court also made decisions contrary to public opinion and government policy regarding
political and racial equality and other civil, political, and procedural rights.

Judicial review outside the United States

In the world outside the United States, the idea of making the judiciary the guardian of the
constitution was not warmly received until the second half of the 20th century. Political and
legal traditions in Europe and elsewhere emphasized central executive or parliamentary
sovereignty and forbade the judiciary from filling interstices in the laws. Eventually,
however, the failure of popular governments based on parliamentary sovereignty, the
experience of world war, wholesale decolonization, and the need to reconstruct the collapsed
regimes built upon fascism and communism led to a sharp change in worldwide attitudes
toward constitutional judicial review. By the early 21st century constitutional review by the
judiciary of legislative and executive actions was a formal part of the written constitutions of
a majority of the worlds nations, including the postcommunist regimes of eastern Europe
and postapartheid South Africa. In other countries where judicial review is central to the
workings of governmentincluding Canada, Australia, and New Zealandits foundations
lay in national-autonomy statutes or judicial pronouncements rather than in written
constitutions.

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Judicial review in Europe differs from the U.S. model. Instead of allowing any court to rule
on the constitutionality of statutes, with the high court in the regular judicial hierarchy being
the ultimate arbiter, European countries have established special constitutional courts to
which all questions concerning the constitutional validity of legislation or executive action
must be referredand which alone have the power to declare statutes or actions
unconstitutional.
In 1920 Austria became the first European country to inaugurate centralized judicial review
in a constitutional court. After World War II, Italy, West Germany, France, and Turkey also
established constitutional courts, as did Spain and Portugal after the fall of the dictatorships
in those countries in the 1970s. Virtually every post-Soviet eastern European country
followed suit, as did Luxembourg in 1997. In contrast, the countries of Scandinavia, as well
as Belgium, Greece, and Ireland, vest judicial-review powers of varying kinds in their regular
courts. The United Kingdom and the Netherlands remain the principal European countries
lacking constitutional judicial review. In both countries, however, the courts may hold that
laws are void because they are inconsistent with the provisions of binding international
treaties, such as those establishing the law of the European Union.

Where constitutional courts exist, questions concerning the validity of statutory laws or
executive actions reach the court chiefly through referrals from the judges of ordinary courts,
who certify the presence of a constitutional question in the litigation, or through appeals by
the losing parties, who assert that the decisions of ordinary courts have deprived them of their
constitutional rights. In some circumstances nonjudicial agenciessuch as the national
executive, the regional governments, or a parliamentary minoritycan bring issues directly
to the constitutional court. Most European constitutional courts also differ from the U.S.
Supreme Court in that they can hear both concrete and abstract disputessuits that,
respectively, do and do not involve an actual case or controversy. In France the
Constitutional Council can set aside unconstitutional statutes only before they have been
promulgated and only upon petition by either the president of the republic, the prime
minister, the chairman of either of the two legislative assemblies, or a parliamentary minority
that includes at least 60 deputies or senators.

The U.S. system of judicial review by ordinary courts also has been adopted widely. It has
been in operation in Switzerland, with some limitations, since 1874. It is also practiced in
several major former British colonies, including India, Canada, Australia, and New Zealand,
and in Japan and the Philippines, countries whose constitutions were drafted with
considerable U.S. influence.

Judicial review by the highest regular courts has been the dominant arrangement in Latin
America, though often the influence of a powerful president or the existence of a politicized
appointment process has made constitutional review effectively a cipher. Nonetheless, courts
in Brazil, Colombia, Mexico, and other Latin American countries have become increasingly
active in restraining the executive and legislative bodies, and there is a trend toward greater
use of judicial review in the region.

Although the practice is not always enshrined in written constitutions, constitutional judicial
review is also the rule in a majority of African, Middle Eastern, and Asian countries, with the
regular-court variety being most common in former British territories and the constitutional-
court type in former French dependencies. There is also a small group of countries that lodge
the power of constitutional review specifically in an agency other than a regular or a
constitutional court.
For the most part, the American doctrine of political questions has not been accepted in the
jurisprudence of centralized European systems. Besides adjudging the validity of statutory
law, European constitutional courts usually must also resolve conflicts between state
agencies (the legislature, the executive, the president of the republic, and the judiciary)
concerning their respective constitutional prerogatives; in addition, they may conduct trials of
impeachment and dispose of other matters of constitutional import.

THE DOCTRINE OF SUBSTANTIVE


ULTRA VIRES
For the purpose of making project in the subject Administrative Law, a very distinct and
important topic has been taken as the central issue of it. 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. Therefore the research would be deliberating upon the topic concerned.

Research methodology to be followed:

To deliberate upon the issue Doctrine of Substantial Ultra Vires" will be dealt in a
systematic and particular way. In this regard, Doctrinal approach has been adopted and
compilation from literary sources, course materials, articles, reviews, e-databases and books
have been given special importance. Along with founding sources the recent developments in
form of judicial pronouncement and case study has also been incorporated in this project.

The Doctrine of Ultra Vires: An Introduction


The doctrine of ultra vires is the basic doctrine in administrative 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.

When a piece of delegated legislation is declared to be ultra vires, it is void and becomes
unenforceable. It cannot affect the rights and duties of any person. Until a rule is declared
invalid by a court, it is presumed to be valid. If the valid and the invalid parts of a rule can be
severed, only then the invalid portion of the rule is quashed and the valid portion can
continue to remain operative. However, if the valid and the invalid parts are inextricably
mixed up, then the entire rule has to go. A void rule cannot be the basis of any administrative
action. No one can be prosecuted under a void rule. The validity of a rule can be challenged
in a court either directly or collaterally, or by way of defense to a civil claim based on the
impugned rule, or as a defense in a prosecution for infringing the rule. A person can
challenge the validity of administrative action by challenging the validity of the relevant rule.
A person whose interest is affected adversely by a piece of delegated legislation can directly
challenge its vires in a court. The court may grant an injunction or declaration or issue
mandamus or award damages to the affected person as may be suitable.

If the subordinate or delegated legislation goes beyond the scope of authority conferred on
the delegate or it is in conflict with the parent or enabling act, it is called substantive ultra
vires. The validity of the subordinate or delegated legislation may be challenged before the
Courts on this ground.

Grounds on which Delegated legislation may be challenged


Enabling or Parent Act is unconstitutional:

In India, there is supremacy of the Constitution and therefore an act passed by the Legislature
is required to be in conformity with the constitutional requirement and if it is found to be in
violation of the constitutional provisions, the court declares it unconstitutional and void. If
enabling or parent act (i.e the act providing for the delegation) is void and subordinate or
delegated legislation made under the act will also be declared to be unconstitutional and
therefore void. The limits of the Constitution may be express and implied.

Express Limit: Articles 13, 245 and 246 provide the express limits of the constitution. Article
13(1) provides that all laws in force in the territory of India immediately before the
commencement of the constitution in so far as they are inconsistent with the provisions of
Part III (fundamental rights) shall, to the extent of the contravention, be void. According to
article 13(2), the state shall not make any law which takes away or abridges the rights
conferred by part III (i.e the Fundamental Rights) and any law made in contravention of this
clause shall, to the extent of the contravention, be void. Article 13(3) makes it clear that for
this purpose, unless the context otherwise requires , law includes any ordinance, order, by
law, rule, regulation, notification, custom or usage having in the territory of India, the force
of law. The legislature, thus, cannot violate the provisions of part III of the constitution
granting the fundamental rights. If the parent or enabling Act is violative of the Fundamental
Rights granted by part III of the constitution, it will be declared by the court as
unconstitutional and void, and the subordinate or delegated legislation made under the act
will also be held to be unconstitutional and void.

Article 245 makes it clear that the legislative powers of the parliament and that of the state
legislatures are subject to the provisions of the constitution. Parliament may make laws for
the whole or any part of the territory of India and the legislatures of a state make laws for the
whole or any part of the state. No law made by the parliament shall be deemed to be invalid
on the ground that it would have extra territorial operation. The state legislature can make
law only for the State concerned and, therefore, the law made by the state legislature having
operation outside the state would be invalid. In the matter of Cauvery Water Disputes
Tribunal, the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 was declared
unconstitutional on certain grounds including the ground that it had extra territorial operation
inasmuch as it interfered with the equitable rights of Tamil Nadu and Pondicherry to the
waters of Cauvery River.

In short, no law made by Parliament shall be deemed to be invalid on the ground that it
would have extra territorial operation. However, the law made by the state legislature may be
challenged on the ground of extra territorial operation. If the parent act is declared to be
unconstitutional, then the delegated legislation made under such act would also be declared
to be unconstitutional and thus, void.

Article 246 makes provisions in respect of the distribution of powers between the powers
between the Parliament and the State legislatures. From article 246 and the seventh schedule,
it becomes clear that the subjects have been divided into three categories Union list, State
list and Concurrent list. Parliament has exclusive power to make laws with respect to any of
the matters or subjects enumerated in the Union list and of the legislature of any state has
power to make laws for such state or any part thereof with respect to any of the matters or
subjects enumerated in the State list. Parliament and State Legislatures both have power to
make laws with respect to any of the matters or subjects enumerated in the Concurrent List,
but In the case of conflict between the law made by Parliament and a law made by the State
Legislature with respect to such matter or subject, the law made by Parliament shall prevail
and the laws made by the State Legislature, to the extent of repugnancy. be void, unless the
law made by the State Legislature has received the assent of the President.

Implied limit: If the Enabling or Parent Act violates the implied limit of the Constitution, it
will be ultra vires the Constitution and therefore It will be void and the delegated legislation
made under the Act will also be unconstitutional and void. The implied limit of the
Constitution Is that essential legislative function entrusted to the legislature by the
Constitution cannot be delegated by it. The essential legislative function consists of the
determination of the legislative policy and its formulation as a rule of conduct. The
legislature delegating its legislative power must lay down the legislative policy and
guidelines regarding the exercise of tin delegated power by delegate. The delegation of
essential legislative function is taken as abdication of essential legislative function by the
Legislature and this is not permitted by the Constitution.

In a case the Supreme Court has made it clear that the essential legislative function which
consists of the determination of the legislature policy cannot be delegated. Such delegation
would amount to abdication of the essential legislative functions.

The Supreme Court has made it clear that the excessive delegation is not permissible. The
doctrine of excessive delegation has played an important role in controlling the practice of
delegated legislation. Excessive delegation is taken as abdication of essential legislative
function by the legislature. The delegation must not be unguided and uncontrolled. If the
delegation is excessive, the Enabling Act or Parent Act will be unconstitutional and therefore
void and the delegated legislation made under such Enabling or Parent Act will also be
unconstitutional and void.
Subordinate or delegated legislation is ultra vires the Constitution:

Sometimes it is found that the Enabling or Parent Act is not violative of the Constitution, but
the subordinate or delegated legislation made under It violates the provisions of the
Constitution. Such subordinate or delegated legislation will be unconstitutional and void,
though the Enabling or Parent Act is perfectly valid. Thus, the subordinate or delegated
legislation, (e.g., rules, regulations, by- laws, etc.) made under the Enabling or Parent Act
may be unconstitutional while the Enabling or Parent Act is constitutional.

Article 31-B of the Constitution of India is also notable here. The Acts and Regulations
Included in the IXth Schedule of the Constitution are protected under Article 31-B against
the ground of Infringement of any of the Fundamental Rights, but not against other grounds.
The protection of Article 31-B is available only to the Acts or Regulations placed In the IXth
Schedule of the Constitution. If an Act Is placed under the IXth Schedule, the protection of
Article 31-B will be available to such Act, but this protection will not be available to the
delegated legislation made under It. Thus, the delegated legislation may be challenged on the
ground that it violates the Constitution, even though the Enabling or Parent Act under, which
it has been made is protected by Article 31-B. (Legislature in 9th schedule is not under
judicial scrutiny) (zamindari abolishment Act)

Delegated legislation is ultra vires the Enabling or Parent Act:

The validity of the subordinate or delegated legislation can be challenged on the ground that
it is ultra vires the Enabling or Parent Act. If the subordinate or delegated legislation made by
the delegate is in excess of the power conferred by the Enabling or Parent Act or is in conflict
with the provisions of the Enabling or Parent Act or is made w ithout following the procedure
required by the Enabling or Parent Act to be followed by the delegate, the delegated or
subordinate legislation will be invalid on the ground that it Is ultra vires the Enabling or
Parent Act. The validity of the exercise of power is tested on the basis of the Prussians as it
stands currently and not on the basis of that it was before.

When it is made in excess of the power conferred by the Enabling or Parent Act:

The subordinate or delegated legislation is held to be ultra vires the Enabling or Parent Act
when it is found to be in excess of the power conferred by the Enabling or Parent Act If the
delegated legislation is beyond the power conferred on the delegated by the Enabling Act, it
would be Invalid even if it has been laid before the Legislature. Where an administrative
authority Is empowered by the Enabling Act to make by-laws to regulate market and the
authority makes by-law which prohibits running of cattle market the by-law will be ultra
vires the Enabling Act.

In S.T.O. v. Abraham the Act empowered the Government to carry out the purposes of the
Act the Government made rule so as to fix the last date for filing the declaration forms by
dealers for getting the benefit of concessional rates on inter-State sales. This rule was held to
be ultra vires the Enabling Act on the ground that the Act empowered the Government for
making rules for prescribing the particulars to be mentioned in the forms and it was not given
power to prescribe a time-limit for filling the form.

When delegated legislation is in conflict with the Enabling or Parent Act:

When the delegated legislation is found to be directly or indirectly in conflict with the
provisions of the Enabling Act or Parent Act, it is held to be ultra vires the Enabling or
Parent Act. In Delhi Transport Undertaking v. B.R.I. Hajelay, a rule was declared Invalid on
the ground that it was in conflict with the provisions of the Enabling or Parent Act,
According to Section 92 of the Delhi Corporation Act. 1957, all persons drawing salary less
than 350 rupees per month shall be appointed only by general Manager of the Delhi
Transport Undertaking. According to Section 95 of the Act, no person can be dismissed by
any authority subordinate to the authority who has appointed him. The rules made under the
Act empowered the General Manager to delegate all his powers to the Assistant General
Manager. The rule was held to be In conflict with the aforesaid provision of the Parent Act.
The effect of the rule was that a person appointed by the General Manager could be
dismissed by the Assistant General Manager. i.e. a person could be dismissed by an authority
subordinate to the authority who had appointed him while Section 95 of the Act provided that
no person can be dismissed by an authority subordinate to the appointing authority. Thus, the
rule was in conflict with Section 95 of the Act. Consequently the rule was held to be invalid.

When delegated legislation is made by authority exercising its power mala fide:

When the subordinate or delegated legislation is made by the administrative authority


exercising its power mala fide or with ulterior motive, It is held to be ultra vires and,
therefore, invalid.

When the delegated legislation is unreasonable and arbitrary:

Wwhen the de1egated legislation is found unreasonable and arbitrary, it is declared invalid.
In India, in some cases to High Courts express the view that the delegated legislation cannot
be challenged on the grounds of unreasonableness. However, the view of the Courts is that
the delegated legislation may be challenged on the ground of unreasonableness and
arbitrariness. In India doctrine of unreasonableness has been given the solid base of Article
14. The delegated legislation which is unreasonable and arbitrary can be challenged on the
ground that it is violative of Article 14.

In Air India v. Nargesh Meerza, a regulation provided that an air hostess would retire from
the service attaining the age of 35 years or on marriage within 4 years of service or on first
pregnancy, whichever occurred earlier. The regulation authorized the Managing Director to
extend the age of retirement to 45 years at his option if an air hostess was found medically
fit. The Regulation did not contain any guidelines or policy according to which the discretion
conferred on the Managing Director was to be exercised. The regulation conferred on the
Managing Director was unguided and uncontrolled discretion. The termination of service of
an air hostess on pregnancy was unreasonable and arbitrary. The regulation was held to be
violative of Article 14 as it was unreasonable and arbitrary.

Briefly stated, the principle is that the delegate cannot make a rule which is not authorized by
the parent statute. If the subordinate legislative authority keeps within the bunds of the power
delegated, the delegated legislation is valid, however, if the authority exceeds the power
delegated, then the courts will certainly declare it to be ultra vires.

Substantive ultra vires means that the rule making authority has no substantive power under
the empowering act to make rules in question. It refers to the scope, extent and range of
power conferred by the parent statute to make delegated legislation. Briefly stated, the
principle is that the delegate cannot make a rule which is not authorized by the parent statute.
If the subordinate legislative authority keeps within the scope and bounds of the power
delegated, the delegated legislation is valid; but if it fails outside the scope of the power, the
courts will declare it invalid. Delegated legislation to be valid must fall within the four
corners of the powers conferred by the statute. Declaring a rule in the Karnataka Motor
Vehicle Rules, 1963, ultra vires the Motor vehicles act, 1939, as a rule was inconsistent with
a section in the act, the Supreme Court declared in State of Karnataka v H. Ganesh Kamath
that the rule making power cannot include within its scope the power to make a rule
contrary to the provisions of the Act conferring the rule making power.

Conferment of a rule making power by an Act does not enable the rule making authority to
make a rule which travels beyond the scope of the enabling Act or which is inconsistent
therewith or repugnant thereto." As the Supreme Court has emphasized in State of U.P v
Renusagar Power Co., if the exercise of power is in the nature of subordinate legislation, the
exercise must conform to the provisions of the statute. All the conditions of the statute must
be fulfilled."

The doctrine refers to the extent, scope and range of power conferred by the parent act on the
concerned authority to make rules. Conferment of rule making power by an Act on an
authority does not enable the rule making authority to make a rule which is beyond the scope
of the enabling act, or which is inconsistent therewith or repugnant thereto.

Substantial Ultra vires & Procedural Ultra vires: a Comparison


When delegated legislation is In conflict with the procedure prescribed by the
Enabling or Parent Act

When the delegated legislation is found to be in conflict with the procedure prescribed by the
Enabling Act, it is held to be ultra vires the Enabling Act and, therefore, void. If the
delegated legislation is made without following the mandatory procedure prescribed by the
Enabling or Parent Act, It will be ultra vires the Enabling or Parent Act and, therefore,
invalid. It is to be noted that the delegated legislation will be held to be invalid on the ground
only if the procedure prescribed by the Act is mandatory. In short, if the procedure required
to be complied with in making the delegated legislation is mandatory and it is not complied
with, the delegated legislation will be held to be invalid on the ground of procedural ultra
vires. If the procedure prescribed by the Enabling Act is not mandatory but directory, its
substantial compliance will be sufficient and thus in case of substantial compliance, It will
not be invalid. In Raja Buland Sugar Co. v. Rampur Municipality, the U.P. Municipalities
Act. 1916 provided that the draft rules must be published in a local Hindi daily. The draft
rules were published in a local Urdu Daily. The Court held that what was mandatory was
publication of the draft rules in a newspaper. Publication In a Hindi daily was only directory.
Consequently, the Court held that the rules could not be held to be ultra vires the Enabling
Act merely because they were published In Urdu daily, (instead of a Hindi daily). The
publication was made in substantial compliance with the manner provided In the Act.

Test of measuring the validity of Rules

Rules have to be consistent with the provisions of the parent statute. A rule cannot enlarge
the meaning of a statutory provision. A rule has to yield to the statutory provision. If a rule
goes beyond what the section in the Act contemplates, the rule has to go. A rule is ultra vires
when it goes beyond the authority conferred on the rule making body by the relevant statute.

To be valid, a rule must fulfill two conditions, they are:

it must conform to the provisions of the statute under which it is framed; and
it must also come within the scope and purview of the rule making power of the
authority framing the rule.

If either of these two conditions is not fulfilled; the rule would be void. To apply the doctrine
of ultra vires, the court has first to interpret the statutory provisions to determine the scope of
delegation of power, then to interpret the delegated legislation in question and finally, to
adjudge whether the same is within, or without, the statutory power conferred.

Difficulty in application of the Doctrine of Ultra Vires

The efficacy of judicial control of delegated legislation is very much dependant on how
broad is the statutory formula conferring power of delegated legislation is very much
dependant on how broad is the statutory formula conferring power of delegated legislation on
the delegate.

Usually, the application of the ultra vires rule becomes very difficult because of three
reasons:

Powers are usually conferred in broad language.

Ordinarily, the Courts interpret the enabling provision rather broadly.


The courts adopt a deferential, rather than a critical, attitude towards delegated legislation.

In India, the test of reasonableness is applicable to delegated legislation, both on general


principles of administrative law as well as under such fundamental rights as are guaranteed
under Constitution of India.

Exclusion of judicial review

Sometimes a clause is inserted in the Enabling or Parent Act for ousting the jurisdiction of
the Courts to review the delegated legislation. This is called exclusion clause. Usually such
clause contains the words rules made shall have effect as If enacted or Included in the Act
Itself or rules made shall not be called in question in any Court. In England. in Institute of
Patent Agents v. Lord Herschel expressed the view that such provision excluded the judicial
review of the delegated legislation on the ground of ultra vires. However, In a later case,
Minister of Health v. King. Lx Paste Yabbe. the view of Lord Herscheli has not been
followed. In this case, the Court has held that inspite of the exclusion clause, the delegated
legislation can be reviewed by the Court and can be declared invalid If it is found ultra vires
the Enabling or Parent Act. Thus, in England, the present position is that Inspite of the
exclusion clause, the subordinate or delegated legislation may be challenged on the ground
that they are ultra vires the Enabling Act.

In India in a few cases the Supreme Court has adopted the view expressed by Lord Herschel
in the case of Institute of Patent Agents v. Lockwood, stated above (the Supreme Court has
held that such clause will exclude the Judicial review of the delegated legislation on the
ground of ultra vires), but in some other cases, the Supreme Court has held that inspite of
such exclusion clause, the delegated legislation can be reviewed by the Court. The present
position is that inspite of such exclusion clause. the delegated legislation may be challenged
before the Court on the ground that they are ultra vires and the Court can hold the delegated
legislation invalid, if it finds them ultra vires.

Case Study

Implied limits of the Constitution are those laid down in In re Delhi Laws Act case, namely
the laying down policy and enacting that policy into a binding rule of conduct. Section 7 of
the Delhi Laws Act, 1972 delegated to the provincial government the power to extend to
Delhi area with such restriction and modification any law in force in any part of British India.
Section 2 of the Ajmer Merwaha (Extension of Laws) Act, 1947 delegated the power to the
Government to extend to the province of Ajmer-Merwaha any law in force in any other
province with such modification and restriction as it may deem fit any enactment which was
in force in any part A state. it also empowered the Govt. to repeal or amend any
corresponding law which was applicable to part C state. The legislature cannot delegate its
essential legislative power to any other agency and if it so delegates the enabling would be
ultra vires of the Constitution. In the said case the Court held that the later part of clause 2
invalid because it authorized the administrative agency to repeal a law, which in the opinion
of the Court, is an essential legislative action.

In Indian Council of Legal Aid and Advice v Bar Council of India the Supreme Court held
that: a rule made by BCI barring qualified persons above the age of 45 years from enrollment
as advocates, as ultra vires, a sit fell outside the power of BCI conferred by it by the
Advocates Act, 1961, Section 49(1).

In Additional District Magistrate (Revenue) Delhi Administration v Siri Ram the Delhi Land
Revenue Rules 1962 made under the Delhi Land Revenue Act,1954, were declared ultra
vires as being contrary to the Parent Act as well as another Act, by making the rules, the rule
making authority had exceeded the power conferred on it by the Land Reforms Act 1954.

Ajay Kumar Mukherjee v UOI is a case where Supreme Court has said that delegated
legislation ultra vires the act by cutting down the breadth of the delegation to bring it in line
with the object of the delegation of legislative power. The purpose or object of the
conferment of the power must be borne in mind.

Conclusion

Thus, to draw conclusion it can be said that if the subordinate or delegated legislation goes
beyond the scope of authority concerned on the delegate or it is in conflict with the Parent or
Enabling Act, it is called substantive ultra vires. The validity of the subordinate or delegated
legislation may be challenged before the Courts on this ground. It is a mechanism to curb
down the exploitation of power by the administrative authority as we all know that power
corrupts and absolute power corrupts absolutely". However in this field there is lack of
development and there is no substantial change in the concept all though the changing nature
of the current legislative method has widen the horizon of the power of the authority by
giving them power to act according to the need of the time, even sometimes travelling
beyond the restrictions.

The Doctrine of Ultra Vires as Judicial


Control over Delegated Legislation in India
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The chief instrument in the hands of the judiciary to control delegated legislation is the
Doctrine of ultra vires.
The doctrine of ultra vires may apply with regard to-

(i) Procedural provision; and

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(ii) Substantive provisions.

(i) Procedural defects:

The Acts of Parliament delegating legislative powers to other bodies or authorities often
provide certain procedural requirements to be complied with by such authorities while
making rules and regulations, etc.
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These formalities may consist of consultation with interested bodies, publication of draft
rules and regulations, hearing of objections, considerations of representations etc. If these
formal requirements are mandatory in nature and are disregarded

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by the said authorities then the rules etc. so made by these authorities would be invalidated
by the Judiciary. In short subordinate legislation in contravention of mandatory procedural
requirements would be invalidated by the court as being ultra vires the parent statute.

Provision in the parent Statute for consulting the interested parties likely to be affected, May,
in such cases, avoid all these inconveniences and the Railway authorities may not enact such
rule after they consult these interests.

A simple provision regarding consultation thus assumes importance. On the other hand, if the
procedural requirements are merely of directory nature, then a disregard thereof would not
affect the validity of subordinate legislation.

The fact that procedural requirements have far reaching effects may be made clear by just
one example. Suppose the Railway authorities want to relieve pressure of work of unloading
goods during day time at a Station amidst a big and brisk business centre.

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The public wants a reduction in the traffic jams due to heavy traffic because of unloading.
The traffic authorities and railway authorities decide to tackle the problem effectively by
making a rule that the unloading be done during late hours of night.

The railway authorities make an order to this effect, without consulting interested bodies.
Such rule might cause many hardships, e.g.

(i) The conditions of labour are such that unloading of goods during the night would
adversely affect the profit margin as the workers would charge more if they work in night
shifts.

(ii) It may not be without risk to carry money from one place to another during late hours of
night. If safety measures are employed, that in addition to the element of a greater risk,
expenses would increase, adversely affecting the margin of profits.

(ii) The Banking facilities may not be available freely during night.

(iv) Additional staff may be necessary in various concerns for night duty.
(v) This business or loading and unloading during -night may cause inconvenience and
disturbance in the locality.

Now in fact of these difficulties another alternative which appears to be desirable is better
supervision of unloading and better regulation of traffic by posting more police officers and
stricter enforcement of traffic laws.

Provisions in the parent statute for consulting the interested parties likely to be affected may,
in such cases, avoid all these inconveniences, and the Railway authorities may not act such a
rule after they consult these interests. A simple provision regarding consultation this assumes
importance.

The question of the effectiveness of the application of the doctrine of ultra vires, so for as
procedure is concerned, would largely depend upon the words used in a particular statute. If
the words are specific and clearly indicate the bodies to be consulted, then it would be
possible to show non-compliance.

But in case where the Minister is vested with the discretion to consult these bodies which he
considers to be representative of the interests likely to be affected or where he is to consult
such bodies, if any, it is very difficult to prove non-compliance with the procedural
requirements.

(ii) Substantive Defects:

In case of delegated legislations, unlike an Act of the Parliament, the court can inquire into
whether it is within the limits laid down by the present statute. If a piece of delegated
legislation is found to be beyond such limits, court would declare it to be ultra vires and
hence invalid.

The administrative authorities exercising legislative power under the authority of an Act of
the Parliament must do so in accordance with the terms and objects of such statutes. To find
out whether administrative authorities have properly exercised the powers, the court has to
construe the parent statute so as to find out the intention of the legislature.

The existence and extent of the powers of administrative authorities is to be affixed in the
light of the provisions of the parent Act. The particular words used on the provision
delegating legislative power to administrative authorities determines the limits of the
delegated authority, If vague words having a wide meaning are used then the control by the
courts becomes less effective.

However, the words used are precise and definite in meaning then such control is far more
effective. Thus judicial control of delegated legislation largely depends upon the wideness or
otherwise of the words used in the empowering provisions.
When powers of an extensive nature are given to the administration that it becomes very
difficult to prove that a certain action of administration was beyond its authority. This, for
example, under the Supplies and Services (Extended Purpose) Act, 1947 the Defense
Regulations could be extended to the following purposes:

(i) For promoting the productivity of industry, commerce and agriculture;

(ii) For fastening and directing exports and reducing imports; and

(iii) Generally for ensuring that the whole resources of the community are available for use,
and are used, in a manner best calculated to serve the community.

An examination of the above provisions shows that the administration can control the
economic life of the people completely and it seems improbable that a plea of ultra vires can
be pleaded with any substantial success in this case since the words used are so vague and
wide in their import.

But where powers conferred upon the administration are comparatively by words used in the
enabling provisions than the doctrine of ultra vires may certainly be used as a means of
control of such powers.

For example, during World War I, various powers were given to the administration, but the
object of such powers was defense of the realm, and authorities competent to apply the
regulations were indicated sufficiently and were few in number and hence the plea of ultra
vires was used with a fair amount of success.

Sometimes the Parliament empowers the administrative authorities to make rules and
regulations for carrying out the provisions of a particular statute.

Such provisions confer very wide powers upon the administration making it very difficult to
find out the limits of the powers of the administrative authorities. The result is that in such
cases the doctrine of ultra vires loses much of its value.

According to C. K. Allen, the result, at the present time, is that the doctrine of ultra vires is
greatly attenuated and indeed, with regard to a very number of executive powers, it may be
said to be completely paralysed. He has very rightly given three principal reasons for his
ineffectiveness of the doctrine of ultra vires:

1. The object or purposes of the enabling statute is so widely worded that almost everything
is covered by it;

2. The Ministers are often empowered to make such regulations as appear to him/them to be
necessary or expedient for a specified purpose; and
3. The distinction between administrative, judicial and legislative acts is very difficult to be
drawn.

According to him, in all these three cases the doctrine of ultra vires displaced to such an
extent that it serves no useful purpose.

Further, the departmental legislation cannot be set aside on the ground of unreasonableness.
[Spark v. Edward Ash Ltd. (1943) K.B.223; Taylor v. Brighton Borough Council, (1947) 1
B.B.233], or as being repugnant to fundamental concept of law.

As regards the question of reasonableness, the judicial pronouncements clearly lay down that
once the powers are conferred upon the particular agency and the exercise thereof is within
limits of authority so conferred, the courts would not interfere.

As regards the second point, i.e., the position of delegated legislation repugnant to natural
justice or common law, it is now settled that courts cannot interfere on this ground. They can
only enquire whether the action is ultra vires.

As regards bye-laws, different legal principles apply and the Courts exercise a reasonably
effective control over this type of delegated legislation. Bye-laws must be made in
accordance with the procedural requirement and of course must be within the authority
conferred upon the issuing authority.

They must not be contrary repugnant to the laws or Statutes of the realm. [Powell v. May,
(1946) K.B. 333]. Further, they must not be repugnant to the parent Statute. The important
point which is noteworthy in this connection is that the Courts in case of bye-laws can
determine the reasonableness thereof.

If these are found to be unreasonable, the court would declare these to be invalid. This gives
the courts the power to determine the desirability or other wise of a bye-law.

The leading case on the point is Kruse v. Johnson, (1898) 2 Q.B. 91, in which it was decided
that it was not unreasonable to empower a policeman to prevent street music of any kind
within fifty yards of a dwelling house, even when there was no proof that the music was in
fact an annoyance to any person or persons.

In Repton School Governors v. Repton R.D.C. (1918) 2 K.B. 133, the court declared a bye-
law as unreasonable which had long been accepted without demur and provided that every
hew building including any addition to an existing building should have an open space of not
less than 150 feet at the back.

The Courts in such matters are guided by the purpose and other relevant considerations to the
rationality of the bye-law. Each case is to be considered on merits.