Illegality is one of the three broad headings of judicial review of administrative action in Singapore, the others being irrationality and procedural impropriety. To avoid acting illegally, an administrative body or public authority must correctly understand the law regulating its power to act and to make decisions, and give effect to it.
The broad heading of illegality may be divided into two sub-headings. In the first case, the High Court inquires into whether the public authority was empowered to take a particular course of action or make a decision, and, in the other, whether it exercised its discretion wrongly even though it was empowered to act. Where the Court finds that the public authority had exceeded its jurisdiction or had exercised its discretion wrongly, it may invalidate the act or decision.
Under the first sub-heading, a public authority will be considered as having acted illegally if there is no legal basis for the action carried out or the decision made (simple ultra vires), or, more specifically, if the authority has made an error concerning a jurisdictional or precedent fact. A precedent fact error is made when an authority comes to a conclusion in the absence of facts that must objectively exist, or in the presence of facts that must not exist, before it has the power to act or decide.
In cases falling under the second sub-heading, a public authority has satisfied all the factual and legal conditions required for exercising a statutory power conferred upon it, but nevertheless may have acted illegally by doing so in a manner contrary to administrative law rules. The grounds of review available under this heading include the authority acting in bad faith, acting on the basis of no evidence or insufficient evidence, making an error of material fact, failing to take into account relevant considerations or taking into account irrelevant ones, acting for an improper purpose, fettering one's discretion, and not fulfilling a person's substantive legitimate expectations.
Introduction Illegality is one of the three broad headings of judicial review of administrative action identified in the key English case of Council of Civil Service Unions v. Minister for the Civil Service ("the GCHQ case", 1983), ("the GCHQ case"). the others being irrationality and procedural impropriety. As Singapore inherited English administrative law on independence and the Singapore courts continue to follow English cases, the Court of Appeal of Singapore approved this principle in Chng Suan Tze v. Minister for Home Affairs (1988).Chng Suan Tze v. Minister for Home Affairs SGCA 16, 2 S.L.R.(R.) [Singapore Law Reports (Reissue)] 525 at 563, para. 119, Court of Appeal (Singapore), archived from the original on 24 December 2011. In the GCHQ case, Lord Diplock formulated the concept of illegality as one where "the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it." Where the decision-maker fails to do so, the High Court may be empowered to quash the decision made or the action taken. Determining whether a decision-maker has acted illegally requires "delineating the scope of statutory powers, which is rarely a mechanistic exercise"..
Prior to 1968, courts in the United Kingdom drew a distinction between jurisdictional and non-jurisdictional errors of law. An error of law that affected the jurisdiction of a decision-maker to exercise its statutory powers was judicially reviewable by the court, whereas an error of that did not go towards jurisdiction was not reviewable.. An exception was that a non-jurisdictional error of law which appeared on the face of the record was reviewable: see, for example, Re Application by Yee Yut Ee [1977–1978] S.L.R.(R.) 490, High Court (Singapore). However, the House of Lords is regarded as having effectively done away with the distinction in Anisminic Ltd. v. Foreign Compensation Commission (1968). by holding that:Anisminic, p. 171.
In R. v. Lord President of the Privy Council, ex parte Page (1992),. the House of Lords expressed the view that Anisminic had "rendered obsolete the distinction between errors of law on the face of the record and other errors of law by extending the doctrine of ultra vires. Thenceforward it was to be taken that Parliament had only conferred the decision-making power on the basis that it was to be exercised on the correct legal basis: a misdirection in law in making the decision therefore rendered the decision ultra vires."Ex parte Page, p. 701. No case in Singapore has produced a similar opinion, but it appears that the Singapore courts adopt the same position, except perhaps where statutes contain ouster clauses.Stansfield Business International Pte. Ltd. v. Minister for Manpower 2 S.L.R.(R.) 866 at 874, paras. 21–22, H.C. (Singapore). Commenting ex-curially, Chief Justice Chan Sek Keong suggested it might be argued that the High Court's supervisory jurisdiction cannot be ousted as this would be inconsistent with Article 93 of the Constitution of Singapore, which vests judicial power in the Supreme Court. If so, drawing a distinction between jurisdictional and non-jurisdictional errors of law is unnecessary. However, he added that he expressed no opinion on this issue: .
The various grounds of review under the broad heading of illegality have also been termed "weak", "broad", or "general unreasonableness", to be contrasted with "strong" or Wednesbury unreasonableness.Leyland & Anthony, "Wednesbury Unreasonableness, Proportionality, and Equality", pp. 284–312 at 285–286. In Associated Provincial Picture Houses v. Wednesbury Corporation (1947),. Lord Greene, the Master of the Rolls, remarked that "a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably.'"Wednesbury, p. 229.
Types of illegality The broad heading of judicial review of illegality may be divided into two sub-headings. In the first case, the High Court inquires into whether the public authority was empowered to take a particular course of action or make a decision, and, in the other, whether it exercised its discretion wrongly even though it was empowered to act. Where the Court finds that the public authority had exceeded its jurisdiction or had exercised its discretion wrongly, it may strike down the decision on the basis of illegality.Leyland & Anthony, "Illegality I", pp. 237–257 at 237.
Whether the public authority was empowered to take action or make a decision Simple ultra vires A decision-maker is said to be acting ultra vires (beyond its powers) when it does not have the power it purported to have, and therefore there is no basis in law for the impugned action or decision.Leyland & Anthony, "Illegality I", p. 239. The ground of judicial review is termed "simple" to distinguish it from a broader conception of ultra vires developed by the courts that was referred to earlier, which essentially encompasses all the forms of illegality mentioned in the rest of this article.Leyland & Anthony, "Introduction to Judicial Review", p. 206.
As simple ultra vires concerns the exact powers conferred upon government ministers and statutory bodies, statutory interpretation is arguably the most important exercise the courts need to engage in to determine the scope of powers laid out in the statute. Hence, the cases decided are fact-specific and depend upon each court's interpretation of the relevant statute, making success of the judicial review somewhat unpredictable. The UK case of Attorney General v. Fulham Corporation (1921),Attorney General v. Fulham Corporation 1 Ch. 440, High Court of Justice (Chancery Division) (England & Wales). illustrates this concept. The defendant was a statutory body establishing washhouses and baths for residents who could not afford their own washing facilities. When it subsequently established a laundry service, the defendant was declared to have acted ultra vires since its statutory purpose was not to carry on a business. Even though the business was carried out at a substantial loss, the statute in question did not give the defendant such a power to do so. Accordingly, the plaintiff was entitled to succeed.Fulham, p 454.
R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (2000), ("Bancoult (No. 1)"). was a case concerning the forcible removal of the indigenous people of the Chagos Archipelago from Diego Garcia and the prohibition of their return by the Government of the United Kingdom so that the United States could construct a large military base there. This was effected by section 4 of the Immigration Ordinance 1971 of the British Indian Ocean Territory enacted pursuant to section 11(1) of the British Indian Ocean Territory Order,British Indian Ocean Territory Order (S.I. 1965/1920). which states: "The Commissioner [for the British Indian Ocean Territory] may make laws for the peace, order and good government of the Territory, and such laws shall be published in such manner as the Commissioner may direct." The High Court held that the 1971 Ordinance was ultra vires the Order, since removing a people from their homeland could not be regarded as within the power to make laws for the territory's "peace, order and good government".Bancoult (No. 1), p. 1104, para. 57. Subsequently, the exclusion of the Chagossians from the land was reimposed by an Order in Council, the British Indian Ocean Territory (Constitution) Order 2004, which was made in the exercise of the royal prerogative. The legality of this Order was upheld by the House of Lords in R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 2) (2008),. which overruled the earlier decision. The House of Lords took the view that the phrase "peace, order and good government" did not entitle the courts to substitute their own view on what the phrase required for that of the Government. Laws made pursuant to it were therefore not justiciable.Bancoult (No. 2), pp. 486, 504–505 and 509–510, paras. 48–50, 107–109, 127–130.
The simple ultra vires doctrine was implicitly applied by the High Court of Singapore in Wong Yip Pui v. Housing and Development Board (1984),Wong Yip Pui v. Housing and Development Board [1983–1984] S.L.R.(R.) 739, H.C. (Singapore). The Court did not specifically refer to the ultra vires doctrine in the case, which was not an application for judicial review. See also Estate and Trust Agencies (1927), Ltd. v. Singapore Improvement Trust UKPC 61, A.C. 898, P.C. (on appeal from the Straits Settlements (Singapore)) (Singapore Improvement Trust acted beyond its powers by declaring house insanitary as there were insufficient grounds to hold that it was "unfit for human habitation" as required by statute). in which the Court had to determine if the Housing and Development Board (HDB) had the power to compulsorily acquire a flat which had been sold to the plaintiff under the Housing and Development Act.. Section 48A(1)(b) of the Act stated:Wong Yip Pui, p. 742, para. 17.