Ultra vires

Meaning to go beyond the powers that were granted by parliament under the enabling act.

The principle of ultra vires arises in the context of control and supervision of Parliament by the process of judicial review.

Such applications are made to the Queens Bench Divisional Court.  The basis of the challenge is that the statutory instrument is ultra vires i.e. goes beyond the powers that were granted by Parliament under the enabling Act.  The effect of such a declaration is to make the legislation void and ineffective.  The courts have no power to correct the legislation so their role is limited.

Another limitation is the courts ability to review such legislation is dependant upon individuals making a claim and bringing the matter to the attention of the courts, the courts do not have any general power to keep such legislation under review.  The process is time consuming and costly and such reviews can only be conducted if an individual claims to be affected and is willing and has the necessary funds to bring a claim. 

There are two forms of ultra vires - procedural ultra vires and unreasonableness ultra vires.  

The case of Strickland v Hayes Borough Council 1986 is an illustration of how regulations may be deemed ultra vires on the basis of their unreasonableness.  The local authority had introduced a bylaw prohibiting the singing or reciting of obscene songs or use of obscene language.  This was held to be unreasonable and therefore ultra vires, on the basis that the bylaw was too widely drafted because it covered acts carried out on private property as well as public land.

If the correct procedure is not followed then this may result in the courts declaring the delegated legislation as being ultra vires and void.  A case which serves as a good illustration of this point is the case of Aylesbury Mushrooms 1972.  In this case the appropriate government Minister failed to observe the prescribed procedure for introducing regulations.  The procedure allowed for consultations with appropriate organisations but this procedure was not followed.  In particular the Minister failed to consult the Mushroom Growers' Association and  therefore proposals requiring the establishment of a training board were held to be ultra vires and ineffective.  

Legal aid residence test was ultra vires, Supreme Court says.

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