Doctrine of Ultra Vires in Public Law

Topics: Law, Administrative law, Ultra vires Pages: 8 (3006 words) Published: November 17, 2011
In a welfare state a government undertakes many ventures for the benefit of the people. This invariably means, powers have to be delegated to sub-ordinate bodies for the smooth functioning and administration of these bodies and ventures, as the Parliament cannot run all these bodies on its own. As the state’s involvement in public affairs increase, more and more power is devolved and as a consequence the need to regulate and restrict this power too increases. In doing so there is a delicate balance to be preserved. On one hand it has to be ensured that the authorities and bodies do not exceed their powers and thus abuse them and on the other hand they should have the powers which are reasonably required to make them effective in carrying out the purpose of the legislative. The Courts, which is charged with achieving this difficult balance, carries out its task on the basis of the perceived intention of the Parliament by constructing the relevant statute granting the power to the body or authority. In doing so they read in between the lines or rather write in between lines of the statute, the presumed, implied intention of the Parliament. This is called the legal construct of the statute or statutory construction. Consequently, most of the Administrative law concepts and doctrines are Judge made law, which have to be read in conjunction with any statute delegating power to a official, body or tribunal. OBJECTIVES OF ADMINISTRATIVE LAW:

Since the Parliament grants the widest possible power and has little control over how these powers are exercised, the objectives of the administrative law are two fold. On one hand it has to protect the citizens from the abuse of power by Public authorities by exercising them arbitrarily and unfairly and on the other hand it has to compel them to exercise those powers, where they should do so but fail to act. DOCTRINE OF ULTRA VIRES:

The Doctrine of Ultra vires is produced by the Constitutional principles of the Rule of Law, the Sovereignty of Parliament and the Independence of the Judiciary. This Doctrine can be considered as the central principle in the whole of Administrative Law. In simple terms all what it says is that a public authority cannot act outside its powers and if it does so the act would be treated as null and void in law. Although this sounds simple, the Courts have developed this principle by extending and refining it over a long period of time. In the case of Ashbury Railway Carriage and Iron Co. Ltd. V. Hector Riche (1875) of the Law Reports 653, the House of Lords considered the validity of a contract entered into by the directors of a company, which did not come within the objects of that company as stated in the Memorandum of Association. It was held that the contract, being of a nature not included in the Memorandum of Association was ultra vires not only of the directors but of the whole company, so that even the subsequent assent of the whole body of shareholders would have no power to ratify it. The decision could be considered as the source of the doctrine that in construing instruments that confer power what is not permitted should be taken as forbidden. Where an act expressly lays down the limits of empowerment, its application is merely an exercise of construing the statutory language and applying to the facts. But where it involves exercising discretion on any question delegated, then there is room for abuse and the doctrine of Ultra vires would apply if the discretion had been exercised unreasonably or in bad faith or on no proper evidence. This result is attained by statutory construction, where the Court assumes that Parliament did not authorize abuse and that certain safeguards against abuse must be implied in the statute. The Courts have extended the judicial control of power by stretching the Doctrine of Ultra Vires. Since they realize that their primary purpose is to protect the citizens against unfairness and abuse of power, they...

Bibliography: Administrative Law, Block 1 (2004) Open University of Sri Lanka, Nawala.
Sir William Wade and Christopher Forsyth, Administrative Law (1994), Clarendon Press, Oxford.
Peiris G.L., Essays on Administrative Law in Sri Lanka (2005), Stamford Lake (Pvt.) Ltd, Pannipitiya, Sri Lanka.
Cooray Sunil F.A., Principles of Administrative Law in Sri Lanka (2001), Sunil F.A. Cooray Jaela, Sri Lanka
Judicial Review © Corbett Haselgrove-Spurin 2004.
Bandaranayake Shirani A., Developments in the Role of the Doctrine of Ultra Vires in the Central – Local Relations: an Analysis, Sri Lanka J.S.S, 1985.
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