On the Ultra Vires Doctrine of British Administrative Law
|Course||Constitutional and Administrative Law|
|Keywords||the ultra vires doctrine judicial review the implied intent of parliament the sovereignty of parliament|
The ultra vires doctrine is the core principle of British administrative law, and alsothe theoretical basis of judicial review for the ordinary courts of administrative acts. Theidea of the ultra vires doctrine invalid from the concept of natural law and legal positivism.The concept of natural law recognize and protect the natural rights of people, and believethat government get people’s obedience can only by protect the people’s rights. Onlymanage state affairs according to law can limit the authority of government and guaranteethe sovereignty of the people. And organize the best government in the form of aparliamentary system. Bentham’s utilitarian principle is actually the ethical principle ofpolitical and legal which constraints the government’s actions perfectly. Austin’s positivistjurisprudence affirmed the parliamentary and the authority of judges which laid thefoundation for judicial review. There is no doubt that the concept of natural law and legalpositivism have important impact to the emergence and development of the ultra viresdoctrine. The constitutional basis of the ultra vires doctrine is the principle ofparliamentary sovereignty and the rule of law. The principle of parliamentary sovereigntyrequires the government obey the legislation of the parliament, the rule of law requires thegovernment comply with the law. Thus the government’s actions will not go beyond thelaw. There are profound social causes of the emergence of the ultra vires doctrine. Theparliament in order to control enormous administrative power, and delegated legislationincreased which require effective checks on executive power. In addition, the content ofthe ultra vires gradually developed by cases, its scope is also changing. From the narrowmeaning beyond the jurisdiction of the statutory bodies to initiative seek the implied intentof the parliamentary legislation, the expansion of the extent of authority make the ultravires almost covering all the administrative violations forms. Since the1990s, manyBritish scholars start a fierce debate about the ultra vires doctrine. The critics of the ultravires doctrine believe that the ultra vires doctrine is uncertainty, detached from reality,self-contradictory and deviate from the public law. But the defenders of the ultra viresdoctrine think the ultra vires doctrine can circumvent the exclusion clause, safeguard thesovereignty of parliament, and maintain the balance of power. The substance of the debateis the legitimacy of judicial review and the relation of parliament and the court. Base onthe impact of European Union law to UK domestic law, the principle of parliamentarysovereignty has been challenged. The pass of Constitutional Reform Acts consolidates the separation of powers of parliament and the court. The application of the ultra viresdoctrine has been limited. But the British courts still adhere to the ultra vires doctrine andbelieve that it is essential. The ultra vires doctrine still maintain an important position inthe theory and practice of British administrative law, and it is also still an important basisfor judicial review.