Illegality — ultra vires and errors of law

Illegality is the first and most fundamental ground of judicial review. It embodies the proposition that a public body acts unlawfully when it exceeds or abuses the powers conferred by statute or the common law. This ground is often traced to the ultra vires doctrine—the principle that a decision-maker possesses only those powers Parliament has granted, and any action beyond those powers is a nullity.

This revision note examines how the courts have policed the boundaries of administrative competence. It begins with the historical ultra vires framework, under which courts distinguished between jurisdictional errors (reviewable) and errors within jurisdiction (unreviewable). The landmark decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 revolutionised this taxonomy, effectively collapsing the distinction and opening all errors of law to review. Subsequent case law—Racal, Page, Cart—has refined, and occasionally destabilised, the Anisminic settlement.

The note also addresses conceptual debates concerning the foundation of judicial review. Is illegality truly grounded in ultra vires—a legislative intent fiction—or is it better understood as a common law principle rooted in the rule of law? These theoretical fault-lines have practical implications for the intensity and scope of review.

By the end of this note, you should be able to: (1) trace the evolution from classical ultra vires to the modern law of error; (2) analyse the scope and limits of jurisdictional review; (3) engage critically with competing academic models; and (4) apply these doctrines confidently in problem questions and essays.

The ultra vires doctrine emerged in the nineteenth century as the principal mechanism for controlling administrative action. Its logic was formalistic: because Parliament is sovereign, public authorities possess only those powers expressly or impliedly conferred by statute. Any action beyond statutory authority is ultra vires (beyond the powers) and void.

The courts developed a complex taxonomy to determine which errors could be reviewed. The pivotal distinction was between jurisdictional errors (errors that took a decision-maker outside its lawful authority) and errors within jurisdiction (mistakes made in the exercise of lawful power). Only the former were reviewable. This bifurcation produced significant analytical difficulty: how could one tell whether an error related to jurisdiction or merely to the merits of the decision?

Jurisdictional fact doctrine provided one response. If a tribunal's authority depended on the existence of a certain state of affairs—a 'jurisdictional fact'—the courts would determine that fact for themselves. For instance, in White and Collins v Minister of Health [1939] 2 KB 838, the court treated as jurisdictional the question whether land formed part of a park, because the statutory scheme applied only to land not forming part of a park. Similarly, in R v Shoreditch Assessment Committee, ex parte Morgan [1910] 2 KB 859, whether premises were a 'factory' was treated as jurisdictional.

However, the distinction between jurisdictional and non-jurisdictional questions was notoriously elusive. As Lord Reid observed in Anisminic, 'it has often been difficult to determine whether a particular question is one of law or fact and whether it is collateral or goes to jurisdiction' (at 171). The difficulty was compounded by ouster clauses—statutory provisions purporting to exclude judicial review—which prompted courts to construe 'jurisdiction' expansively in order to preserve their supervisory role.

By the mid-twentieth century, the classical framework was under strain. The expansion of the administrative state and the proliferation of specialist tribunals raised questions about the appropriateness of rigid formalism. The stage was set for Anisminic.

Modern illegality doctrine rests on several interlocking principles:

(a) All errors of law are reviewable

Following Anisminic, the courts have asserted a general power to quash administrative decisions infected by legal error. The distinction between jurisdictional and non-jurisdictional error has been marginalised (though not entirely eliminated). As Lord Diplock stated in O'Reilly v Mackman [1983] 2 AC 237, one ground of review is that 'the decision-making authority… has committed an error of law in reaching a decision' (at 278).

(b) Jurisdictional limits remain conceptually important

Although Anisminic expanded the scope of review, the language of jurisdiction persists. Decision-makers must act within their statutory remit: they must address the right question, apply the correct legal test, and comply with procedural requirements. As Lord Reid explained in Anisminic, a tribunal's purported determination is a nullity if it has 'asked itself the wrong question' or 'taken into account matters which it was not entitled to take into account' (at 171).

(c) The duty to determine questions of law correctly

Foundation

1. What is the distinction between a jurisdictional error and an error within jurisdiction? Explain how Anisminic changed the law.

1. Why are ouster clauses generally ineffective to prevent judicial review for error of law? How might Parliament draft an ouster clause that would be effective?

Standard

1. 'Judicial review is concerned with legality, not merits.' Discuss with reference to the control of errors of law.

1. Alpha Tribunal determines that the claimant is not a 'worker' within the meaning of the Employment Rights Act 1996 and dismisses her claim. The statute provides that 'a determination of the Tribunal shall be final'. Advise the claimant.

Challenge

1. 'The conceptual foundations of judicial review remain contested, and this contest has practical consequences.' Critically assess this claim with reference to illegality, ouster clauses, and the scope of review.

Essential

• Paul Craig, 'Ultra Vires and the Foundations of Judicial Review' (1998) 57 CLJ 63.
• Christopher Forsyth, 'Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review' (1996) 55 CLJ 122.
• Mark Elliott, 'The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law' (1999) 58 CLJ 129.

Important cases (full judgments)

• Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (especially Lord Reid at 171).
• R (Cart) v Upper Tribunal [2011] UKSC 28 (Lady Hale JSC).
• R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22 (Lord Carnwath JSC dissenting).

Advanced

• Sir John Laws, 'Law and Democracy' [1995] PL 72.
• TRS Allan, 'The Constitutional Foundations of Judicial Review: Conceptual Conundrum or Interpretative Inquiry?' (2002) 61 CLJ 87.
• Dawn Oliver, 'Is the Ultra Vires Rule the Basis of Judicial Review?' [1987] PL 543.
• Richard Ekins, 'Judicial Supremacy and the Rule of Law' (2003) 119 LQR 127.

Policy and reform

• JUSTICE-All Souls Review, Administrative Justice: Some Necessary Reforms (Clarendon Press 1988), ch 6.
• Public Law Project, The Public Law Project's Response to the Independent Review of Administrative Law (2020).