Local authorities in this country are responsible for many of the things that we take for granted; schools and roads, street lights and rubbish disposal, to name just a few. Sometimes, your council needs to be reminded of their duties. On other occasions, they take too much upon themselves and need to be reined in a bit. In the last year or so, it has become common to see the term ultra vires being applied by some home educators to the behaviour of local authorities when they are undertaking the monitoring of home education.
As far as I can discover, it was Ian Dowty the home educating barrister from Leytonstone who first suggested that the idea of ultra vires might be relevant in this area. What in fact is meant by ultra vires? This Latin phrase translates literally as "Beyond the powers". In the case of a local authorities, this can mean that they take actions which are in conflict with the law of the land. How can we decide if this is actually happening? Since most laws are framed in a peculiarly impenetrable jargon which most of us can make little sense of, and since most statute laws are in any case subject to interpretation by the courts; the only way we can know if a local authority is assuming ultra vires powers is when a court rules this to be so.
It is quite true that a barrister such as Ian Dowty might believe that this or that action of a local authority constitutes ultra vires actions by a council. Unfortunately another barrister, perhaps one employed by the council, would argue quite the opposite. A court will consider the matter and deliver its judgement. Until this happens, it is absolutely impossible to say with confidence that any particular action of a local authority is ultra vires.
Incidentally, most actions against local authorities are to make them do things that they are not doing, rather than to restrain them from doing too much. Working as I do in the London boroughs of Tower Hamlets and Hackney, I have seen a number of individuals seek a judicial review in order to get the council to perform their duties. Again, this can only be established in court.
As far as I can make out, what is being complained of with respect to local authorities and home educators is that some officers claim to have more powers than they actually do have. Of course, if this is happening, it is most regrettable. As I said above, the other case also happens, that local authorities claim to have fewer powers than they have in order to evade responsibility for a homeless family for example. This is annoying of course, but for a local authority officer to be mistaken about the legal situation or to misinform parents is not in itself a question of ultra vires. If they do something though, perhaps issuing a School Attendance Order in an irregular fashion, then this can be unlawful and the council can be found to have acted "ultra vires". This is pretty rare and I have certainly never heard of it happening in recent years with a case of home education. Before companies began to frame their constitutions in such a way as to allow them to undertake any lawful object, the ultra vires business used to crop up when a company entered into a contract which its own articles of incorporation forbade it to do. The contract could then be ruled ultra vires . It would not have been a case of ultra vires though if the company secretary simply announced the intention of entering into such a contract. In the same way, local authority officers just claiming that they have this power or that is not a matter of ultra vires. If however, they attempt to exercise such powers, then the time may be ripe to seek a judicial review.
I would be curious to hear of a local authority which has actually taken legal action against a home educating family which has subsequently been ruled to be ultra vires. I would also be extremely interested if anybody can point me towards what Ian Dowty said about this. I am guessing off hand that he qualified his opinion by saying "It might be argued" or "This might constitute" or something of that sort.
It is always alarming when the laity get hold of impressive sounding legal expressions in this way! According to Tania Berlow, a third of home educating families live in ultra vires local authorities. I would be very pleased if anybody could explain just what this means.
(Those interested in looking into this a little more deeply, could do worse than consider Boddington V British Transport Police 1995 and also the Wednesbury Unreasonableness test. Both of these cases are very relevant to this debate)