THE LIMITS OF JUDICIAL REVIEW: STATUTORY DISCRETIONS AND THE DOCTRINE OF ULTRA VIRES
| DOI | http://doi.org/10.1111/j.1468-2230.1948.tb00092.x |
| Date | 01 July 1948 |
| Published date | 01 July 1948 |
THE
LIMITS
OF
JUDICIAL REVIEW:
STATUTORY
DISCRETILONS AND
THE
DOCTRINE
OF
uurm
VIRES
I
LEO&
certainty is always
an
elusive quarry, but its pursuit is rarely
more tantalising than in that field of public law which is concerned
with the judicial review
of
statutory discretions.
It
would
be
most
desirable for public authorities whose planning schemes and
housing programmes may
be
subjected
to
serious delays and
etultifying restrictions by judicial decisions, as well as for property-
owner6 whose interests may be condemned to extinction, to
be
able
to
make confident predictions
of
the attitude
of
the courts. Some
of
the recent cases have helped
to
clarify the situation
;
but
a
neat
formulation
of
the principles governing this
‘
highly acrobatic part
of
the law
’
remains impossible, p-imarily because of the diversity
of
ita subjecbmatter, but partly also because of the nebulous
terminology employed by the courts.
(1)
Each decision turns upon the interpretation of the particular
statuk conferring the discretionary power, and there is
no
assur-
ance that
a
court
will
be
ready
to
apply
to
the case
in
hand
principles laid down
in
a previous decision based
on
a
different
statute, even though the material facts appear
to
be
similar.
Again, hard words have been written about the judicial
interpretation of collectivist legislation
a
and, although recent cases
suggest that the courts will now generally regard such measures
with a not unkindly eye, the fundamental antithesis between the
mischief rule and the common law presumptions of legislative
interest still gives rise to uncertainty. Some judges clearly show a
closer attachment than others
to
the common law presumptions.
Nor
has the task of the judge always been facilitated by the
draftsman. The language found in statutes has lacked nothing
in
variety: an
Act
moy empower,
or
direct, an authority
to
take
specified action,
or
to
take ‘reasonable’ action of a specified
character, when
x
facts exist;
it
may nuthorise the taking of
specified action,
or
such action as the authority concerned thinks
fit,
when that authority
‘
is satisfied that it
is
expedient in the public
interest
’
to
do
so
and when it
‘
is satisfied
’
that
x
facts exist;
or
it
may equivocate,
e.g.,
by substituting the word ‘requisite’ for
‘expedite’ in different sub-sections
of
the same se~tion,~ or
1
John
Willie
in
(1940)
63
Hnrv.L.Rev.
at
p.
281.
1
See
eep.
Sir W.
I.
Jepninge,
Courts
ond
Administrative
Ltw
I,
(1030)
49
Harv.
Stntutc
Interprctotion in
a
Nutsliell
,
(1938)
16
Con.Bar
3
See
a.
1
of
the
Town
nnd
Country
Planning
Act,
1944.
L.ltcv.
426;
Willis,
Rev.
1.
a06
JULY
1948
THE
LIMITS
OF
JUDICIAL
REVIEW
807
by requiring the nuthority
to
bc
'
Fensonably satisfied
'.
Sometimes,
it
has
sccmed that
the
purpose of vnrying the Inngunge has been
niercly
'
to
improve the grnces of the style nnd
to
avoid using the
same words over and over again
'.'
It
must be mid, however, that
the wording of several
of
the most recent statutes lenves less room
for doubt. By conferring discretionary powers upon Ministers in
the most fnr-reaching terms, Parliament appears
to
have deliberately
discournged judicinl interference.
Even whcrc thc discretionnry powers nrc very wide, the
possibility of some form of judicinl review cannot be ignored unless
the Act unnmliipiously forbids nny resort
to
the courts.5 But it
is often hard to determine whether any existing remedy will ennble
the improper exercise
of
n
discretion to bc cffcctivcly chnllenged.
The Act mny, of course, point out the remedy by expressly pro-
viding for
a
direct appeal to the courts.' Such a provision is,
however, unusual. More commonly the nmbit
of
judicinl review
remains obscure until nn nggieved member of the public invokes
the jurisdiction of the courts. He mny then
go
unrewnrded
for
his temerity owing
to
the limitations of the remcdy on which he
relies. Thus, whilst certiorari is the npproprinte remedy where
'
judicinl
'
powers have been exceeded or abused, it will not lie
to
ennble the lend determinntion of the authority entrusted with those
powers
to
be rcviewcd on its merits, either for insufftciency of
evidence
or
lack
of
evidence
';
the declaratory judgplent'is a dis-
crctionnry remedy of illdefined lirnitntions; injunctions and order8
of
mnndamus
are
,not obtainable ngninst the Crown
or
its ngents,'
nnd the exnct scope of mnndnmus is in other respects uncertain.
(2)
Those functions of public authorities which
nre
not legislative
are usunlly classified
na
judicinl, quasi-judicial nnd ndministrative.'
This clnssificntion is unsntisfnctory for several reasons.
(a)
It
is doubtful whether nny clear distinction of substance can
be
drawn between the three functions. The Donoughmore
Com-
mittee mnde
a
serious attempt
to
formulate definitions which were
designed
to
nssist the Legislaturc
to
allocate the dserent types
of
functions to what the Committee believed to
be
the most approprinte
authorities.'O However, its critics have shown that its definitions
were too obscure
to
afford nny such guidance."
4
Per Blackburn,
J.,
in
Hadley
v.
Perks (1866),
L.R.
1
Q.B. 444 at p.
467.
8
Bee, e.g., clause
26
of
the British Nationality Bill, 1948 (absolute diacre-
tiona
powers
of
the Secretary
of
State. etc.).
@
E.g.,%ouaing Act, 1950,
8.
16
(a
pcale
to
count courts).
7
R.
v.
9
ecial
Purposer Comrs.
oflncorne
Taz
&881),
21 Q.B.D.
919;
R.
v.
Nat
BelP
Liquora,
Ltd.,
[lWA2]
9
A.C. 1%;
R.
v.
Minister
of
Health, [lOSe]
1
K.B.
292;
R.
v.
Ludlow,
ez
p.
Darmley
Corpn.,
[l947]
K.B.
634.
8
Crown Proceedinge Act, 1047,
88.
91,
40
(6).
Administrative functions
are
often called
'
executive
'.
10
Report
of
the Comrnittce on Miniatcrs'
Powprs.
Cmd. 400/199a, pp.
78
ff.
I*
Jennin
8,
'
The
Report
on
Minieters'
Powers
,
(19s)
10
Public Administration
899
an!
The
I,aw and
Ihe Conslitulion. 3rd
ed.,
Appendix
I;
W.
A.
RObnon,
Jwtica
and
Administratiue
Law, 2nd ed., Chap.
0.
See
ale0
pp.
909-10,
infra.
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