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County Council v Attorney General

County Council v Attorney General Free Essay

London County Council v Attorney General

The case London County Council v Attorney General forms a crucial aspect of the administrative law in the world. The court established a jurisprudence concerning the exercise of the incidental powers by the county councils. In brief, if the county councils are to use their power in incidental matters, such powers must comply with the parent Act. The main issue of the consideration in the case at hand was whether the London County Council had the power to operate a bus station when, according to the section 69 of the Act establishing it, it had the power to purchase and operate tramways. The court, therefore, had the task of interpreting whether the regulation included in the Act could also accommodate the operation of the omnibuses as a subset of tramways. The court was, however, quick to conclude that the County Council as constituted in the Act did not have the powers to run buses. Consequently, the court further insisted that the County Council could not consider the operation of buses as a part of tramways. Therefore, the current paper seeks to analyze the case of London County Council v Attorney General.

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Analysis of the Courts Decision

The decision made in the case is critical when it comes to the field of administrative law. The decision forms a basis upon which the local governments may claim to exercise incidental powers. According to the judge, incidental powers are only attainable when there is an Act already in place that establishes the county council (Barnett, 2014). In the case at hand, for example, the Act provided that the County Council could exercise the powers to purchase and control tramways; therefore, it appears that such kind of powers is ancillary and thus applied exclusively. The claim made by the County Council that it can operate buses, however, falls incidental to the powers given for the operation of tramways (Barnett, 2014). The powers to operate a tramway are, therefore, permanent and cannot be taken away by any person apart from amending the Act granting such powers.

Powers Possessed to the County Council According to the Case

From the case, it can be seen that the country council exercises two kinds of powers. Some powers are, therefore, mandatory as they are defined by the legislation while others are permissive due to their availability depending on ones financial abilities (Barnett, 2014). It should not, however, go unmentioned that any power or duty arising out of the legislation becomes automatically mandatory as compared to the discretion. The powers as granted under the Statute provided in the London County Council V Attorney General case, therefore, fall under the auspices of the mandatory powers. The incidental powers, on the other hand, represent passive powers since it is not mandatory for a county council to execute them.

Incidental Powers under the London County Council V Attorney General Case

To start with, according to the definition, the incidental powers refer to those powers not specifically provided for under the parent Act establishing the county council. However, such powers are necessary for carrying out daily operations of the Council (Barnett, 2014). The exercise of these powers may be not considered or could not be foreseen at the time the Act of Parliament or Statute were enacted. Nevertheless, they become more relevant to the fulfillment of the mandatory or statutory powers granted under the Statute.

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In a more elaborate example, assuming that a company is mandated statutorily to provide the accommodation to its workers, the Act goes further to state that the powers of the construction of the houses for such employees shall be a responsibility of the county councils. An above example is a blanket statement issued by the Statute, which must be obeyed by the employer. Otherwise, employers face the risk of the termination of their job duties. While carrying out the mandate, however, several other necessary powers will need to be exercised by the county council to fulfill the above mandate, though not specifically. For example, in the process of the construction of houses, the county council will face other difficulties like the purchase of a piece of land that will later become a construction site. Furthermore, it may also have challenges in terms of the budget planning and budget estimates (Barnett, 2014). These challenges are unforeseeable at the time when the Act comes into force. However, they may be triggered by the officer concerned with the fulfillment of a statutory duty. Likewise, when the county council purchases a piece of land, it does not presuppose that the construction is mandatory because the manager may decide to either turn it into the construction plan or may sell or give the land away. Thus, there is no guarantee that this land will be allotted to the construction. Therefore, it is obvious that one of the factors is reliant on another. The one that cannot exist on its own is called the ancillary or incidental power while the opposite is the statutory power.

Having understood what the powers mean, it would, therefore, be necessary to consider whether the powers are not mandatory and whether one may exercise those secondary powers within the law. It, however, appears that since the ancillary powers are a derivation of the statutory powers, then they must be undertaken according to the law that governs them.

Allocation of Powers

After granting the powers by the Statute and taking into account the conduct and implication like the ancillary laws, the next consideration is whether the powers may to some extent reflect the powers in all counties. It should not go unmentioned that matters concerning the regulation of the powers for the public good are the first power that is primary to all the county councils. There are, however, some other powers that are exercised in a different manner across all the county councils (Barnett, 2014). Such kind of powers is exercised according to the financial capacity of the county council.

Procedural Requirements for the Exercise of Powers Granted to Local Authorities

The county councils do not operate on their own but are rather tasked with performing their duties in the interest of all people. Therefore, they are supposed to have some minimal procedural rules that govern the manner in which their relations are established with other people, especially when it comes to the signing of contracts. The first and the most important rule of engagement is a notice granted within a reasonable time to give all the applicants an equal chance of participating in the process. The second administrative step is to invite the public for tendering their proposals. Such a step requires that the information regarding all the items requested by the county council and the preferred quality are indicated in the form for the proper application by the candidates. Another rule is the duty of disclosure (Barnett, 2014). The county council works with committees that are in charge of several activities, including a committee on the tendering process. An administrative body such as a county council plays a role of the quasi-judicial body in its decision-making process; therefore, it is always proper that the members of the particular committee should have no conflict of interest. It is, therefore, the requirement of the law that before any member is participating in the tender awarding committee, such individuals should disclose whether they have any interest in the tender. The process aims at achieving fairness for everyone in line with the mandate of the statute authorizing such a process. In most times, people disqualify themselves due to the interest in financial matters. However, this is not limited to such cases because even a souse may be considered to have an interest if another spouse is participating in the committee.

Remedies of Aggrieved Persons as a Result of the Misuse of the Incidental Powers

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The county council is considered both an administrative and a quasi-judicial body. If any person is not satisfied with either the decision of the committee or the council, in general, the law allows an individual to be heard by the council before the matter proceeds to the court. The process under which the county council reviews its decisions is called a judicial review (Manaster & Selmi, 2015). When the complaint is lodged, the principles of natural justice must apply. These principles include a fair process that does not discriminate any person. Second, all individuals must be heard and their complaints must be reviewed on fair grounds before either being approved or dismissed. Therefore, to achieve the natural justice criteria, several ideas have been proposed by distinguished constitutional and administrative law experts (Manaster & Selmi, 2015). The first rule is the eradication of any form of bias from the system before the complaint is heard. Second, all people must be called to defend themselves before the county council. Third, the notice is filed to every participant to avoid ambushing another party in the case. The fourth aspect is the exercise of the duty of disclosure, which aims at ensuring that there is no conflict of interest in the entire process. The right of a person represented by an individual of ones choice, in most cases, a lawyer, is also upheld.

Court Orders That May be Granted

If the matter is heard by the administrative body but still an individual is not satisfied, such a person still has a remedy in the courts for the grant of either certiorari, mandamus, or prohibition. In simple word, certiorari means to quash a decision of a lower court or tribunal. A person who applies for this order must show that one of the grounds for natural justice was violated. The court will then order that the proceedings of either the county council or another committee should be taken to the court hearing. Furthermore, the prohibition whit presupposes that the court can prohibit the action of an individual who is likely to injure another person, leading to irreparable harm (Manaster & Selmi, 2015). Under the remedy of mandamus, the court seeks to compel an individual to perform a duty that one failed to perform.

Conclusion

The case of London County Council v Attorney General shows how the incidental powers of the local councils are derived and the best ways they can be exercised. The power is discretionary and is aimed at supporting the statutory powers. However, during the exercise of such powers, if any person feels aggrieved, one can make a complaint against the council and demand a further judicial review in the higher courts for certiorari, mandamus, and prohibition.

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