Ultra vires

Problem: Not always clear what the purpose of the statute is?

How do courts determine: Courts infer purposes and considerations from the statute, looking at statements within the act and the four corners of the act, which is a matter of law for the court - Padfield v Minister of Agriculture, Fisheries and Food [1968]

It is the court's job to determine if the conduct was or was not within statutory purpose - R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement [1995] 1 WLR 386

Ambiguity: Where purpose is sufficiently ambiguous, the court may leave it to the decision-maker, as long as it is not interpreted perversely (Ex parte Puhlhofer [1986]) AC 484

Ultra vires through improper purpose

Does the proposed action match stated legislative purpose? (Municipal Council of Sydney v Campbell [1925] AC 339

Many purposes, but the main is unlawful (Magill v Porter and Weeks [2002] UKHL 67

Is the purpose relevant, but the way in which it is executed is too intrusive/too extreme? - Unison v Lord Chancellor [2017] UKSC 51

Are any of the implied purposes not being fulfilled (if there are implied purposes) - Padfield v Minister of Agriculture, Fisheries and Food [1968]

Does the interpreted purpose conflict with common law rights, such as to deprive access to courts (R v Lord Chancellor ex p Witham [1998]), levy tax (Attorney General v Wilts United Dairies Ltd (1921), have retrospective effect (Malloch v Aberdeen Corporation (1974), deprive liberties without express statutory authority (ex parte Simms)

Interpretative approach is relevant

Under a literal interpretation, the council do not have the power to operate a paid-for laundry service under Baths and Washhouses Act 1878.

Under a purposive interpretation, the council could have the power to operate a paid-for laundry, to acheive the purpose of promoting health and sanitation.

Taking into account irrelevant considerations and not taking into account relevant considerations.

a)       To determine whether relevant considerations have been taken into account, it’s important to scrutinise the wording in multiple directions

b)      The court must assess whether the discretionary power has considered relevant considerations and not considered irrelevant considerations - Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223

c)       Relevant considerations are those matters expressly or impliedly referred to in the act. In Cooper v Wandsworth Board of Works [1863] the court argued that the decision-maker had failed to take into account the relevant consideration that no man should be deprived of his property without a right to be heard, which was a common principle of justice.

d) Considerations may be obligatory considerations, which are expressly listed in the statute or implied by the act- Corner House v Serious Fraud Office [2008] UKHL 60; G(AP) v Scottish Ministers [2013] UKSC 79

e)       Considerations may also be permissible considerations, which do not contradict purpose of the act Corner House v Serious Fraud Office [2008] UKHL 60; G(AP) v Scottish Ministers [2013] UKSC 79

f)       Considerations may not be irrelevant considerations, which are contrary to the purpose of the Act - Corner House v Serious Fraud Office [2008] UKHL 60; G(AP) v Scottish Ministers [2013] UKSC 79

a)       Relevant considerations must be implied or expressed in the statute, not from what people think is best. – Re Findlay [1985] 1 AC 318

a)       In determining whether the consideration is irrelevant, courts should give thought to the quality of reasons provided – Padfield v Minister of Agriculture, Fisheries and Food [1968] 1 ALL ER 694 (HL) The court determined that, where the circumstances indicate a genuine complaint for which the proper remedy is provided, then the Minister should give reasons if he has a negative attitude as to whether the complaint should be remedied, even where the statute does not require reasons.

b)      The court also takes into account the context of the case. In serious matters  - Corner House Research v Director of Serious Fraud Office [2008] UKHL 60. The facts in this case, which were that the minister withdrew his investigation into corruption in a UK company when Saudi Arabia threatened to remove itself from the anti-terrorist agreement between the UK and Saudi Arabia (as well as other threats), suggest that there would have to be a significant reason for the minister not fulfilling his duties.

c)       The court also takes into account the nature of function – R v Secretary for State for the Home Department, ex p. Venables [1998] AC 407. The public protests were legally irrelevant and could not be taken into account by the Home Secretary in fixing the tariff.