Ultra Vires Judicial Review

McColl

Substantive ultra vires = where a body has no statutory basis for acting in the way it has

Procedural ultra vires

• The body has the power but failed to follow the requirements 

• Eg failed to consult, failed to follow statutory steps etc

• Ridge v Baldwin

improper purpose

• Using power for a purpose which parliament did not intend

• Padfield

relevant/irrelevant considerations

• Where body has considered irrelevant factors, or failed to consider relevant factors

• Fewings

Fettering discretion

• Adopting a rigid policy and refusing to consider exceptions 

• British Oxygen 

Unauthorised delegation

Who can exercise the power?

Error of law

• Any error of law by body = ultra vires

• Anismic Ltd 

Quintavalle 

• Courts ruled that embryos were within the scope of the act 

• Parliament had not intended to confine the body’s powers

Black-Clawson International

• Statutory interpretation is “seeking the meaning of the words which Parliament used”

UNISON

fees in employment tribunals illegal because unaffordable

R (on the application of O (a minor, by her litigation friend AO)) (Appellant) v Secretary of State for the Home Department (Respondent) R (on the application of The Project for the Registration of Children as British Citizens) (Appellant) v Secretary of State for the Home Department (Respondent)

• The 2014 Act in authorising the Secretary of State to set the fees did not impose any criterion of affordability

• in the 2014 Act Parliament did not specify that there must be adjustments made to the level of the fees charged or the waiver of such fees for children who could not afford to pay the specified fee

Judicial deference

= courts restraining themselves from interfering with decisions made by public bodies

• Public bodies = democratically accountable

• Expertise

Cox

Could only be challenged on irrationality as there was no clear legal error

R v Richmond Council

• Council acted outwith its powers as there was no statutory basis for charge 

D&J Nicol v Dundee Harbour Trustees 

• Using ferries for excursions was outwith the territorial limits designated by the statute

• Ultra vires 

• A statutory body can only do what Parliament expressly or necessarily impliedly authorises. Just because it might be commercially sensible does not mean it is lawful.