1. Adv. Vijay Jayshwal
Kathmandu University School of law
Substantive Ultra Vires

2. Concept
 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.
 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.

3. The Development of the Legitimate Expectation
Doctrine in General Administrative Law
 Judicial review is the process by which maladministration
by any administrative authority is generally challenged.
 There are a range of grounds for judicial review that have
been developed by the courts, predominantly in the 20th
century, building on earlier legal processes.
 One of the more recent developments has been that of the
doctrine of legitimate expectation as one basis on
which administrative authorities can be bound to their
statements or actions through the process of judicial
review.
 The courts have had to negotiate a fine balancing act
between various principles of administrative law as
these principles have developed.
 The principles may at times limit what a public body can
do and/or give individuals rights in relation to the acts
of those bodies.
 However at other times those same principles may limit
the ability of an individual to challenge the pubic

4. General rule of Doctrine of Legitimate
Expectations
 The ultra vires rule, where a power vested in a public
body is exceeded, and acts done in excess of the
power are invalid as being ultra vires;
 The rule that an authority which is entrusted with a
discretion must direct itself properly on the law or its
decision may be declared invalid;
 The rule that public bodies may not fetter their own
discretions, and thus a body must not contract in
advance to exercise a power in a particular way;
 The rule that the courts may not put themselves in the
position of having to exercise the discretions of
administrative bodies;
 The notions of fairness, including what is referred to
as the doctrine of legitimate expectation.

5. Development
 In 1905, it was stated that ‘a public body invested
with statutory powers … must take care not to
exceed or abuse its powers. It must keep within
the limits of the authority committed to it. It must
act in good faith. And it must act reasonably.’
(Lord McNaughten in Westminster Corporation v
London and North Western Ry. [1905] AC 426).
 However, during the latter part of the 20th century the
courts appeared to weave their way through what
could at times be apparently conflicting principles, by
developing one particular aspect of the notions of
fairness: the doctrine of legitimate expectation.
 The legitimate expectation must be such that it would
be an abuse of power for the public body to resile
from the matter in respect of which it has allowed a

6.  Indeed, notions of fairness in a judicial context
do not simply require courts to ask: is it fair to
allow the authority to change its decision or
practice?
 Fairness is the act of balancing the potentially
conflicting interests of the individual and the
administrator.
 Lever Finance Ltd v Westminster (City) London
Borough Council (8 [1971] 1 QB 222) where the
Court of Appeal held that the council was bound
by the statements made by the planning official
and the building stayed, even though the
neighbors felt justifiably aggrieved that the
permission should never have been granted.
 ‘If an officer, acting within the scope of his
ostensible authority, makes a representation
on which another acts, then a public
authority may be bound by it, just as much

7.  In 2001, in the case of R v North and East
Devon Health Authority, ex parte Coughlan,
([2001] QB 213) the court set out a statement
of where the doctrine of legitimate expectation
had reached:
(a) The court may decide that the public authority
is only required to bear in mind its previous
policy or other representation, giving it the
weight it thinks right, but no more, before
deciding whether to change course.
(b) The court may decide that the promise or
practice induces a legitimate expectation of,
for example, being consulted before a
particular decision is taken.
(c) Where the court considers that a lawful
promise or practice has induced a legitimate

8.  So, a distinction has been drawn between cases
involving procedural expectation and
substantive expectation but, throughout, the
underlying question continues: would it be an
abuse of power for the public authority to resile
from the matter in respect of which it has
allowed a legitimate expectation to arise?
 Proportionality is seen as key. So: ‘where the
representation relied on amounts to an
unambiguous promise; where there is
detrimental reliance; where the promise is made
to an individual or specific group; these are
instances where denial of the expectation is
likely to be harder to justify as a proportionate
measure.
 In R (Bancoult) v Secretary of State for Foreign
and Commonwealth Affairs ([2009] 1 AC 453)
Lord Hoffmann said: ‘It is clear that in a case

9. Hence
 There may be substantive or procedural
legitimate expectation.
 In considering whether the representation by the
public body can be enforced, it is necessary to
consider:
(i) How unambiguous the statement is, whether the
representation was made to an individual or a
specific group, and whether there has been
detrimental reliance;
(ii) The extent to which the administrator’s change
of view or practice raises greater public interest
issues.
If, without a specific commitment, the distinct and
substantial policy affects a person or group who

10. Some of the consideration for
substantive ultra vires
 The nature of substantive powers
 Judicial review of substantive power
 The limits of statutory powers (defining the limits,
fundamental matters of law, rights and obligations
of inferior courts, error of substantive portion of
law)
 Ouster clauses (a clause or provision included
in a piece of legislation by a legislative body to
exclude judicial review of acts and decisions of
the executive by stripping the courts of their
supervisory judicial function)

11.  The orthodoxy in English administrative law circles
is that ouster clauses are unlikely ever to be
effective.
 The underlying logic of the majority of the
House of Lords in the landmark case
of Anisminic v Foreign Compensation
Commission [1969] 2 AC 147 is that an ouster
clause does not protect an unlawful decision
from judicial oversight — a “determination”
tainted by an error of law was only a purported
“determination” and thus fell outside the
protection of a clause providing that any
“determination” of the Commission could not
be called into question in the courts.
 With unlawfulness being given an ever-wider
scope by the English courts, it seems almost
impossible to craft an ouster clause that would

12.  R (Privacy International) v Foreign and
Commonwealth Secretary [2017] EWCA Civ
1868, penned by a highly respected public
lawyer (Sales LJ), that judicial oversight of the
Investigatory Powers Tribunal has been
successfully ousted by s. 67(8) of the
Regulation of Investigatory Powers Act 2000:
 The determinations, awards and other
decisions of the Tribunal (including decisions as
to whether they have jurisdiction) shall not be
subject to appeal or be liable to be questioned
in any court.

13. Governing principles
 The implication is that any clauses purporting to
deprive the courts of their judicial review jurisdiction
should be narrowly construed because they make
“a substantial inroad upon usual rule of law standards
in this jurisdiction”.
 There must be perfect balance between preserving an
elements of judicial supervision of executive action
and parliament's ostensible desire to allocate final
decisions-making authority to executive bodies of
specialist.
 These are some of traditional notion of ouster clauses
used by the Parliament in order to curtail the
availability of judicial review:
1. Finality clauses- decisions to be final, not be
questioned (or words to that effect)
2. No certiorari clauses
3. Conclusive evidence clauses
4. Time limitations

14. Error of law on the face of Record
 The decisions of the inferior courts affected by
errors of law will usually be regarded, not as ultra
vires for excess or abuse of some fundamental
legal requirements of their powers, but as merely
voidable decisions.
 A voidable decision is a legally effective decision
until it is quashed by the court, in contrast to an
ultra vires decisions which is null and void ab
initio.
 A decision could be quashed as being ultra vires
if additional evidence beyond the record of a
decision could be produced.
 The availability of certiorari is to cure error of law
on the fact of the record.

15. The Limits of Discretionary Powers
 When a statute provides that an administrative
agency has discretionary powers, it does not allow
unlimited discretion (Dickson v. Secretary of
Defense, 68 F.3d 1396 (D.C. Cir. 1995))
 An agency which has been granted discretion by
statute is expected to limit its discretion based on the
regulations imposed by the statute.
 When the legislature has provided a clear and
unambiguous law, agencies are not justified in
altering, modifying, or extending the reach of law
(Ashcroft v. Industrial Comm’n, 855 P.2d 267 (Utah Ct.
App. 1993)
 Administrative agencies are expected to apply just
and fair discretion.
 These agencies should comply with established
principles of justice while exercising discretion.
 It would amount to abuse of discretionary power if
administrative agencies act arbitrarily, carelessly,

16. The problem of Subjectively worded
Discretionary Powers
 Hard to determine the applicability of power
 Possibility of misused
 Court has to provide legality and maximum
chances for multiple interpretation
 No common standards for the enforcement of
decision
 Possibilities of less effective and uncommon
enforcement
 Wider play of decision maker and possibilities of
bad game

17. Policy and exercise of discretionary
powers
 Where statue confers a discretion on an
administrative agency, that agency has an opportunity
to make a choice in determining what action to take or
decision to make.
 In order to make such action, administrative agency
may adopt a policy. A policy will often be made where
the administrative agency is charged with the
responsibility of distributing scarce resources in order
to achieve what seems to be equitable of the
resources.
 Whatever the policy adopted by an administrative
agency, that policy must be within the limits of the
powers of the Act in questions ( Cumings v
Birkenhead Corporation 1972).
 The basis for legal requirements relating to policy is

18. Lawful and unlawful policies
 If a policy is ultra vires the Act under which can
administrative agency is discharging its functions,
that agency nevertheless acts unlawfully where
the policy prevents consideration of the merits of
each case.
 Policy must not widen-up or limited the power
conferred by the Act.
 Unlawful policy will be subject to judicial review
and also the cat can be challenged based on it.

19. Other considerations…
 Acts under dictation
 The interpretation and application of policy
 Relevant consideration
 Improper purposes
 Total unreasonableness
 Proportionality

20.  See you on remedies for unlawful and irregular
administrative action (unit 4).