Section on Ultra Vires

Section on Ultra Vires ( Draft pending passing of Decentralisation and Localism Act in late 2011.)

( For The Regulatory Framework Section of TIS –see minute 7.2 of the October 2010 meeting)

The phrase ultra vires is derived from the Latin ultra beyond and vires strength/powers.

In administrative law it can be used in a narrow or broad sense. Narrow ultra vires applies to a situation where the Corporation does not have the power to make a decision .A Local Authority that enters into an agreement or contract that is said to be beyond its statutory powers is said to be acting ultra vires. For instance in the case of Hazel v Hammersmith(1991) 1 All ER 545, The House of Lords held that interest rate swaps undertaken by Hammersmith Council lacked express statutory authorisation.

However a broader use of untra vires applies if there is an abuse of power, acting unreasonably, or acting unlawfully. The courts may quash a local authority decision if it can be demonstrated to be highly unreasonable, as established in the Wednesbury case: “If a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can intervene … but to prove a case of that kind would require something overwhelming…” Lord Green- Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223, HL.

The new government is planning to introduce a “ General Power of Competence” for local authorities under the Decentralisation and Localism Bill ( Introduced to Parliament 13th December 2010) which is intended to give local authorities the ability to act in the best interest of their communities, even if specific legislation does not give those authorities the power to take the action they intend. Thus no action ( except for raising taxes) will be beyond the power of local government unless it is specifically prevented by law. This power , if approved will greatly reduce the applicability of the Ultra Vires principle. However Councils should seek specialist legal advice on the application of the Act (if it is approved).

The implications of this new power in terms of service delivery are potentially vast, since it moves local government from a situation where councils can only do things they are empowered to by legislation, to a situation where they can do anything they want to do unless prohibited by law. It could lead to authorities providing for a new range of services.