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The Vires Defence—“Ultra Vires” as a Defence to Criminal or Civil Proceedings

  • Carl Emery

Extract

Defendants to criminal or civil proceedings will often seek to escape liability by showing that a public authority has acted ultra vires. For example, a person prosecuted for infringing a byelaw or breaking a licence condition may seek to advance the defence that the byelaw or condition is ultra vires the public authority which made or imposed it. Again, a person sued in debt by a public authority may seek to raise the defence that no money is due because the authority acted ultra vires in imposing the charge which it is now suing to recover. Nowadays, too, the European Court of Justice may hold in effect that an Act of Parliament is contrary to Community law and so should not be applied by UK courts. A person prosecuted, say in a magistrates' court, for a criminal offence created by a statute which is or may be contrary to Community law may seek to persuade the justices to “disapply” the statute—virtually, in the case of a post-Accession statute, to treat it as ultra vires the UK Parliament—and so to acquit him.

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1 R. v. Reading Crown Court, ex p. Hutchinson [1988] Q.B. 384 (byelaw)—see text to note 53 below; Attorney-General's Reference (No. 2 of 1988) [1990] 1 Q.B. 77 (licence condition)—see note 104 below.

2 Wandsworth L.B.C. v. Winder [1985] A.C. 461 (council house rent-increase)—see part II(E) below; Customs and Excise Commissioners v. Fine Art Dvpts. p.l.c. [1989] A.C. 914—see note 104 below.

3 See, e.g., R. v. Secretary of State for Transport, ex p. Factortame (No. 2) (Case C 213/89) (1991) 1 A.C. 603 in which the European Court held in effect that certain provisions of the Merchant Shipping Act 1988 were contrary to Community law.

4 An example in the public eye is the current litigation on the continued applicability of the English “Sunday trading” legislation: see part III below. On whether a statute may be said to be “ultra vires” see note 116 below.

5 Quoted by Lloyd L.J. in ex p. Hutchinson, note 1 above.

6 H.W.R. Wade, Constitutional Fundamentals (rev. ed. 1989), p. 79.

7 See R. v. I.R.C., ex p. Nat. Fed. of Self-Employed etc. [1982] A.C. 617. 640. per Lord Diplock.

8 Part II.

9 On the equivalency of meaning between “ultra vires” and “without jurisdiction” see de Smith. Judicial Review of Administrative Action (4th ed.), p. 106.

10 Administrative lawyers will at once see that an effort is being made to avoid using the terms “void” and “voidable”. It is, of course, true that the pre-renaissance case law on the vires defence is very much couched in these terms. But they have been found troublesome by both judges and commentators. In the context of the vires defence (and of collateral challenge generally-see text below) the distinction sought to be made by the use of the terms void and voidable is, it is submitted, as set out in the text above. It is further submitted that the terms “ultra vires” and “simply erroneous” more clearly encapsulate the essence of the distinction than the terms “void” and “voidable”. On the relationship between the terms “ultra vires” and “void”, see further II(B) below.

11 “Reversible” is used as convenient shorthand to include any or all types of modification which a review court or tribunal may make to an official act or decision which is erroneous but intra vires. The term thus refers not only to a total or partial reversal of an act or decision but also to a substitution of judgment, a remission of the case for further consideration or any other corrective jurisdiction.

12 For other examples including cases where a plaintiff rather than a defendant may seek to raise a validity issue, see Emery and Smythe, Judicial Review (1986), p. 30.

13 Rubinstein, A., Jurisdiction and Illegality (1965), pp. 35et scq.

14 Rubinstein (op. cit., p. 44) describes this as “the traditional and orthodox common law doctrine”. There are some reported cases which strain the orthodox doctrine—commentators have found the decision in DPP v. Head [1959] A.C. 83 especially problematical. The House of Lords quashed Head's conviction for sexual intercourse with a woman detained under mental health legislation. The House held that since the detention order in question was patently invalid, the offence was not made out, for the woman was not detained, as the offence required, “under the Act”. In the House of Lords Lord Denning held that the order was voidable rather than void—i.e., in the terminology adopted and explained above that the order was not ultra vires but was simply erroneous. The majority of the House left that question open, indicating that they did not regard it as critical. It appears from the majority judgments that Head may be seen as a case where the court regarded the validity of an official act (a mental health detention order) as being expressly incorporated by statute into the definition of the offence charged (sexual intercourse with a woman “detained under the Act”). This ratio has been found by some critics difficult to sustain (see e.g. Rubinstein, op. cit., p. 42). Nevertheless, on this analysis Head is not authority for the proposition that simply erroneous acts can sometimes be challenged collaterally: Rubinstein, op. cit., p. 185; cf. Emery and Smythe, op. cit., p. 68.

15 This general proposition is, of course, subject in particular cases to any contrary statutory provision—see Smith v. East Elbe R.D.C. [1956] A.C. 736 and, generally, Emery and Smythe, op. cit., p. 69. There is a further qualification in respect of certain orders of courts. The rule that a vires defence can be raised in any proceedings where it is relevant applies in general where a defendant seeks to challenge the validity of a court order made in other proceedings. So, for example, if as in O'Connor v. Isaacs [1956] 2 Q.B. 288 a magistrates' maintenance order has been made without jurisdiction, the subject of the order may raise its invalidity as a defence to enforcement proceedings. However, we may note two special cases. First, where the court order which a defendant seeks to challenge affects the legal status of a third party and a successful challenge would prejudicially affect that third party, the defendant cannot raise the validity issue except by attacking the order directly, if he has standing to do so, on appeal or by application for judicial review. So, e.g., in Skinner v. Carter [1948] Ch. 387 the defendant to maintenance proceedings in respect of a child argued that a county court adoption order previously made in his favour was void because the order had been granted on the erroneous basis that he was married to the child's mother. Accordingly, he argued, since the adoption order was void, he could not be ordered to maintain the child. He was not allowed to raise the vires defence. The Court of Appeal held that since the impugned adoption order affected the legal status of the child, the justices had no jurisdiction to disregard it. For a similarly-based exception relating to security of title to transferred property, see Bond, Biddle v. (1865) B. & S. 225; Rubinstein, op. cit., p. 45. The second special case relates to orders of superior courts (courts of High Court status and above). These must be obeyed unless and until set aside. Their invalidity cannot said to be raised as a defence in other proceedings. So, e.g., in Isaacs v. Robertson [1985] A.C. 97. It was held to be no defence to contempt of court proceedings that the High Court order which had been disregarded was apparently irregular and would have been set aside on appeal. The technical justification for the rule exemplified in Isaacs v. Robertson is that superior courts are not subject to supervisory review. Thus, such courts cannot be guilty of jurisdictional error—Iheir decisions cannot be ultra vires. It follows that the vires defence cannot be invoked to challenge such decisions. This exception to the general principle can perhaps be justified in public policy terms as a reflection of the status of and respect due from inferior courts to orders of superior courts.

16 Kruse v. Johnson [1898] 2 Q.B. 91.

17 Bunbury v. Fuller (1853) 9 Ex. 111.

18 Hutchins v. Chambers (1758) 1 Burr. 579.

19 “Want of jurisdiction” emerged as a prerequisite for collateral challenge largely in the context of actions in tort against officials who had enforced invalid judgments of inferior courts: Rubinstein, op. cit, ch. IV. For a contemporary articulation of the view that liability in such circumstances should attend only a “quite exceptional”—and, by inference, quite plain—transgression of the bounds of jurisdiction, see Lord Bridge in Re McC (a minor) 1985] A.C. 528 at 546, For early examples of the vires defence, see Rubinstein, op. cit.. p. 39. Prior to the eighteenth century the concept of “want of jurisdiction” retained a “limited meaning and clarity of principle” (ibid., p. 70). It later lost this clarity, but remained rccognisably rooted in the notion of the transgression of fixed boundaries of competence: ibid., p. 197.

20 De, Smith, op. cit., pp. 108et seq. Rubinstein, previous note.

21 [1983] 2 A.C. 237.

22 Anisminic Ltd. v. Foreign Compensation Commission [ 1969J 2 A.C. 147.

23 Beatson (1984) 4 O.J.L.S. 22; Wade Administrative Law (6th ed.), pp. 299, et seq., Emery, and Smythe, , op. cit., pp. 140et seq.

24 See part I(A) above.

25 Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374 at 410.

26 See Emery, and Smythe, , op. cit., pp. 121127 and works there cited.

27 R. v. Panel on Take-overs and Mergers, ex p. Datafin p.l.e. [1987] Q.B. 815 and subsequent eases.

28 See generally D. Oliver, [1987] PL. 543. Recent cases of importance here include: R. v. Norfolk C.C., ex p. M. [1989] Q.B. 619; R. v. Harrow L.B.C., ex p. D. [1990] Fam. 133; R. v. Environment Secretary, ex p. Greenwich L.B.C., The Times 7 May 1989.

29 Part I(D) above.

30 See section (C) below.

31 See section (D) below.

32 Part I(C) above.

33 Wade, Administrative Law. pp. 348et seq.; see too Sedley, S. [1989] P.L. 32. For the courts' flexible attitude towards the grant of remedies for ultra vires action—an attitude not constrained by any apparently inexorable inferences flowing from the equation of “ultra vires” with “void”— see section (D) below.

34 In R. v. Home Secretary, ex p. Malhi [1991] 1 O.B. 194, 208. On this case, see further below, at note 46.

35 [1988] Q.B. 114; [1988] P.L. 169 (AW. Bradley); [1988] N.L.J. 270 (C.T. Emery).

36 Local Government (Miscellaneous Provisions) Act 1982.

37 [1988] Q.B. 114 at 131.

38 Ibid., at 128, 129.

39 Ibid., at 129.

40 R. v. Secretary of State for the Environment, ex p. Hackney L.B.C. [1984] 1 W.L.R. 592.

41 E.g., R. v. Jenner [1983] 1 W.L.R. 873. The notice purported to prohibit activity which had been carried on for more than 12 months but the Town and Country Planning Act 1971, s. 90(2) (see now 1990 Act, s. 183(5)) provided that a stop notice “shall not prohibit” such activity.

42 Cf. Wandsworth L.B.C. v. Winder [1985] A.C. 461, considered in section (E) below.

43 If an authority is not originally a party it may be possible for it to be joined as a party in order to fight its corner: on joinder of parties, see R.S.C. Ord. 15. In Hazell v. Hammersmith and Fulham L.B.C. [1991] 2 W.L.R. 372 (H.L.) the district auditor was seeking a declaration that certain of the local authority's items of account were contrary to law. The items related to “interest rate swap” transactions with banks which were not parties to the proceedings; but because a ruling in the proceedings might have prejudiced the banks' rights to enforce the transactions, the court granted the banks' application under R.S.C. Ord. 15, r. 6 to be joined as parties. Hazell was not, of course, a case of vires defence; but the focus of the banks' concern was the possibility that if, later, they sued to enforce the transactions, the local authority itself would mount the defence that the transactions were ultra vires the authority. A vires defence of this nature is likely to raise public law issues of particular complexity: see [1990] 2 Q.B. 697 at 736738 (Q.B.D.), 792795 (C.A.); see further, note 72 below.

44 (1987) 60 T.C. 549.

45 Ibid., at 556.

46 [1991] 1 Q.B. 194.

47 Immigration Act 1988. s. 5(1).

48 Per Mustill L.J., [1991] 1 Q.B. 194 at 208.

49 Section (B).

50 [1991] 1 Q.B. 194 at 211.

51 Ibid., al 205.

52 See also per Woolf J. in City of Westminster v. Lunepalm Ltd. 5 December 1985 (unreported; LEXIS transcript); Chief Adjudication Officer v. Foster [1991] 3 W L R 473.

53 [1988] Q.B. 384.

51 ibid., at 395.

55 The Times, 27 12 1989; LEXIS transcript.

56 Part II(F) below.

57 R. v. Panelon Take-overs and Mergers, ex p. Datafin p.l.e. [1987] Q.B. 815.

58 ibid., at 840.

59 See Sir Harry Woolf in [1986] P.L. at 225; see also Woolf L.J., judicially, in R. v. S. Somerset DC, ex p. DJB Ltd. (1989) 87 L.G.R. 624. See also G. v. Hounslow L.B.C. (1987) 86 L.G.R. 186 (Peter Crawford QC sitting as a Deputy High Court Judge).

60 In Beatson's words in “‘Public’ and ‘Private’ in English Administrative Law” (1987) 103 L.Q.R. 34 at 61: “collateral challenge would be eliminated”.

61 [1975] 2 A.C. 295, 368.

62 [1975] A.C. 295 at 342 (Lord Reid); 352–354 (Lord Morris); 357–358 (Lord Wilberforce); 366–367 (Lord Diplock); 371 (Lord Cross). It may be observed that although at 367 Lord Diplock said that the presumption of validity prevails “so long as there has been no final judgment to the contrary” (emphasis added), he stated clearly (ibid) that if at the interlocutory stage the defendant made out a strong prima facie case that the impuged act was ultra vires, this might induce the court either to refuse to grant an interlocutory injunction or else to grant it only if a cross-undertaking as to damages (see further, note 64 below) were given by the other side.

63 Lord Wilberforce dissenting trenchantly: [1975] A.C. 295 at 357 et seq.

64 As appears from the speeches of their lordships in Hoffman, where a court requires a crossundertaking in damages as the condition of granting an interlocutory injunction, it does so precisely to avoid the possibility that if at the hearing the defendant succeeds, the interlocutory injunction will have caused him unwarranted and irrecoverable damage: see per Lord Diplock at 361 referring to “damnum absque injuria”. It is plain that where a public authority seeks an injunction to enforce the criminal law against a defendant who raises a vires defence, that defence would often be emasculated if thepublic authority were able to obtain an interlocutory injunction without being required to undertake in damages. For this reason, the general rule is that an undertaking will be required “as a mater of course” (per Dillon L.J. in Kirklees B.C. v. Wickes Ltd., [1991] 3 W.L.R. 985). But the general rule does not apply with full force where it is the Crown which is seeking to enforce the law by applying for an injunction. In Hoffman the House of Lords made it clear that there is no rule that undertakings in damages wili not in these circumstances be required of the Crown. However, there was said to be a tension between (a) the requirement of justice that what eventually proves to be a successful vires defence is not emasculated at the interlocutory stage by the absence of a cross-undertaking; and (b) the questionable constitutional propriety of requiring the Crown to pledge public funds to remedy a bona fide (though in the end unsuccessful) attempt to enforce a particular law for the protection of a particular interest group (see per Lord Diplock at 367). In Hoffman, only Lord Wilberforce would have resolved that tension in favour of requiring the damages undertaking from the Crown. It appears (see note 131 below) that where a vires defence is based on alleged incompatibility or conflict between domestic law and European Community law, the court must decline to grant an interlocutory injunction, even to the Crown, in the absence of a damages undertaking.

65 R. v. Secretary of State for Transport, ex p. Factortame Ltd. [1990] 2 A.C. 85. There the company had applied for judicial review alleging (inter alia) that certain provisions of the Merchant Shipping Act 1988 were contrary to directly applicable EEC law. The issue before the House of Lords was whether the court had jurisdiction to grant the applicant interim relief postponing the coming into force of the statutory provisions pending the resolution of the substantive issue by the European Court on an Art. 177 reference. In answer to the company's claim for interim relief the Crown relied on the Hoffman presumption of validity. But the House held that this reliance was misconceived. Speaking of the position where a defendant to an interlocutory application seeks to raise a vires defence. Lord Bridge (giving in effect the judgment of the House) said: “ … I accept that the court may in its discretion properly decline to exercise its jurisdiction to grant an interim order in aid of the enforcement of disputed legislative measures in a situation where, as in Hoffman-La Roche, it is necessary to invoke the court's jurisdiction in order to secure their enforcement.” Lord Bridge then observed that in Factortame the issue arose not (as in Hoffman) by way of defence but by way of a claim to interim relief. And “[e]ffective relief can only be given if it requires the Secretary of State to treat the applicants' vessels as entitled to registration under … the Act in direct contravention of its provisions”. In effect, then, the applicant in Factortame was attempting to raise a presumption of invalidity—and that attempt failed. Nevertheless it is plain that Lord Bridge's approach preserves intact the principle that the “presumption of validity” does not prevent vires issues from being raised by way of defence—either at interlocutory level or, a fortiori, at a trial.

66 [1966] 1 OB. 380.

67 Landlords of purpose-built flats sought to have the rating list quashed on the ground that in assessing the rateable value of the flats the authority had taken account of unlawful considerations with the result that purpose-built flats were rated more harshly than flats in converted houses. By a majority of 2:1 the court held that the assessments were lawful.

68 Per Lord Denning M.R. at 404. Emphasis added.

69 Ibid., at 402–403 (Lord Denning M. R.), 418 (Danc kwerts L. J.)

70 See, e.g., R. v. Souihwark LBC, ex p. Murdoch, The Times 2 04 1990 where Judge J. declined to quash an invalid Town and Country Planning Act “stop notice” but expressed the view that the invalidity of the notice could form the basis of a vires defence.

71 In Wavertey B.C. v. Hilden [1988] 1 W.L.R. 246, 260 (see further, note 88 below).

72 It may be that Scott J.'s assertion reflects the unarticulated premise that a successful collateral challenge characterises the action challenged as “void” with the consequence inexorably as stated. It seems likely, however, that if the judges were to address this point expressly they would feel no more bound by the logic of the equation between “ultra vires” and “void” in the context of collateral challenge than in the context of direct: see part II(B) above. In Hazell v. Hammersmith and Fulham L.B.C. [1990] 2 Q.B. 697 at 739, Woolf L.J., giving the judgment of the Divisional Court, referred to “ … the problem, which has not yet been tackled by the courts, of integrating into private law proceedings in which private rights are involved the discretions which are built into judicial review and which can deprive a litigant in judicial review of a remedy to which he would otherwise be entitled”.

73 Part IV.

74 [1983] 2 A.C. 237.

75 Ibid., at 285.

76 I.e., by writ or originating summons.

77 E.g., Ackner L.J. in Wandsworth London Borough Council v. Winder [1985] A.C. 461 at 468473 (C.A.); and, extra-judicially, Woolf L.J. in [1986] P.L. 225.

78 [1985] A.C. 461.

79 Ibid, at 509.

80 Ibid

81 See W. Godwin [1989] N.L.J. 181.

82 [1985] A.C. 461 at 507. But Sir Harry Woolf in [1986] PL. 225 at 234 doubts whether Winder had a private law right.

83 See section (C) above.

84 See ibid

85 [1988] Q.B. 384 at 395. The Divisional Court in Hutchinson accepted that on the facts of Quietlynn the company could properly be said to have abused process since it had commenced an application for judicial review but h ad abandoned the application “at the door of the [High] court” (ibid., at 394) simply in order t o take the point later in t he magistrates' court instead of by the order 53 procedure—plainly a delaying tactic.

86 R. v. Oxford Crown Court, ex p. Smith, The Times 27 12 1989; LEXIS transcript. Reviewing the authorities, Simon Brown J. expressed the view that “[t]he essence of the decision [in Winder] … is that it is not an abuse of process to challenge a public law decision as an integral part of defending oneself against county court proceedings.” Brown J. preferred to follow Hutchinson rather than Woolf L.J.'s dicta in R. v. South Somerset DC, ex p. DJB (Group) Ltd. (1989) 87 L.G.R. 624.

87 If it is tolerably clear that O'Reilly does not restrict the right of defendants to raise vires issues, it remains unclear whether a plaintiff asserting a private law right will always escape the trammels of O'Reilly: see, e.g., C. v. Hounslow LBC (1987) 86 L.G.R. 186. But cf. Roy v. Kensington etc. Family Practitioner Committee [1992] 2 W.L.R. 239 (H.L.)

88 [1988] 1 W.L.R. 246.

89 Under the Caravan Sites Act 1968, s. 6.

90 [1988] 1 W.L.R. 246 at 259.

91 [1988] O.B. 656.

92 Section 2(2).

93 [1983] 2 A.C. 237 at 285.

94 See the discussion in Beatson, (1987) 103 L.Q.R. 34 at 57.

95 Sir Harry Woolf's description of Winder in [1986] P.L. 225 at 228.

96 [1983]2 A.C. 237 at 281.

97 [1985] A.C. 461 at 509.

98 See sections (B)—(D) above.

99 It has been said that “there is a lack of principled guidance on the scope of the exception in Winder, leading to [the] conflicting Divisional Court decisions [in Quietlynn and Hulchinson]“: D. Feldman, “Public Law Values in the House of Lords” (1990) 106 L.Q.R. 246, 274.

101 Per Lord Fraser in Winder at 509.

102 Per Lord Fraser, giving in effect the judgment of the House, in Winder,ibid., at 510.

103 Sections (C) and (D). Issues of court competence and abuse of process in magistrates' courts have recently emerged together in the context of the developing case law on delay in commencing criminal proceedings. In R. v. TelfordJJ, ex p. Badhan [1991] 2 W.L.R. 866, the Divisional Court held that examining justices have jurisdiction to refuse to entertain committal proceedings which they regard as an abuse of process. At 875, the Court preferred House of Lords dicta emphasising the constitutional rights of accused subjects to dicta in the same case stressing the need to avoid “lack of uniformity in the administration of justice.” Cf. R. v. Governor of Pentonville Prison, ex p. Sinclair [1991] 2 A.C. 64, where the House of Lords confirmed that magistrates have no jurisdiction to determine whether extradition proceedings are an abuse of process; Lord Ackner (at 78) observed that the House had yet to pronounce on the validity of Badhan and kindred decisions.

104 E.g.: Bristol DC v. Clark [1975] 1 W.L.R. 1443; Cannock Chase DC v. Kelly [1978] 1 W.L.R. 1; R. v. Jenner [1983] 1 W.L.R. 873 (above, note 41); R. v. Kuxhaus [1988] Q.B. 631 (failing to comply with planning authority enforcement notice); Attorney-General's Reference (No. 2 of 1988) [1990] 1 Q.B. 77 (waste-disposal company prosecuted for breach of a condition in its licence under the 1974 Control of Pollution Act submitted successfully that it had no case to answer since the condition was ultra vires); Customs and Excise Commissioners v. Fine Art Dvpts. p.l.e. [1989] A.C. 914 (company had deducted from the VAT charged to it in one year amounts overpaid by it (by mistake of law) in previous years. Commissioners sued for the amount deducted but before the House of Lords the company defended successfully arguing that it was not liable to pay because the commissioners had a statutory duty to make the deduction); I.R.C v. Nuttall [1990] 1 W.L.R. 631 (taxpayer allowed to defend Revenue action for breach of “back duty” agreement by arguing agreement ultra vires).

105 I am grateful to my colleague Colin Warbriek for providing this section.

106 On legal aid, see further IV(C) below.

107 Article 6 provides:

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly … of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) …

108 Engel ECHR A/22 (1977).

109 Osturk ECHR A/73 (1984).

110 Bentham ECHR A/97 (1985). van Dijk, P. and van Hoof, G.J.H., Theory and Practice of the European Convention on Human Rights (2nd ed, 1990) pp. 296305.

111 ECHR A/174 (1990); also Quaranta v. Switzerland, ibid A/205 (1991).

112 ECHR A/18 (1975), pp. 13–18.

113 Art. 25.

114 For an illuminating general account, to which the author is indebted, of the relationship between United Kingdom law and Community law, see Lawrence, Collins, European Community Law in the United Kingdom (4th ed., 1990), referred to below as “Collins”.

115 E.g., a time-limited immigration leave for a worker from another member state, as in R. v. Pieck [1980] 3 C.M.L.R. 220; a decision to prosecute, as in R. v. Dearlove (1988) 88 Cr. App. R. 279. (For national law on review of decisions to prosecute, see R. v. Chief Constable of Kent, ex p. L, The Times 17 04 1991.)

116 In the case of an Act of Parliament the terminology of “ultra vires” is inappropriate. Where a pre-accession statute has been challenged the argument has been that, to the extent that it is inconsistent with Community law, it has been impliedly repealed by the operation of the European Communities Act 1972; in the case of a post-accession statute, that it should be protanto “disapplied” because of its inconsistency with Community law. Such arguments, of course, share the complexity and “public law” quality of vires challenges stricto sensu. A further point on the use of the English law concept of “ultra vires” in the Community law context is that for the purposes of the “Euro/vires defence” “ultra vires” may have an importantly extended meaning in that the limitations of the “Wednesbury” doctrine do not necessarily apply. So, e.g., in R. v. Minister of Agriculture, Fisheries and Food, ex p. Bell Lines Ltd. [1984[ 2 C.M.L.R. 502 the English Divisional Court on application for judicial review declared that the refusal of the Ministry to designate Newport and Fleetwood as authorised places of entry for the import of UHT dairy products from Ireland was a disguised restriction on trade contrary to EEC Art. 30. The court held that its duty to grant an effective remedy for breaches of Community law entitled it to investigate whether or not in fact the refusal was justified, as the Minister contended, by Art. 36; the Court was not confined by the Wednesbury doctrine to inquiring simply whether or not a reasonable Minister could have reached the conclusion that the refusal was so justified. I am indebted to Professor David Vaughan for pointing out the relevance of the Bell Lines case to the scope of the “Euro/vires defence”.

117 National official action may contravene Community law in a number of different ways. In most of the reported cases where a Euro/vires defence has been raised, the argument has been that certain national legislation contravenes directly effective Community law—see, e.g., the Sunday trading and the sex shop cases cited below. Differently, in R. v. Plymouth JJ., ex p. Rogers, discussed below, the defence argued that an English statutory instrument was ultra viresbecause it purported to implement certain Community regulations which were themselves still partly incomplete, and so not yet effective. A third possible variant of the Euro/vires defence would be an argument that certain national legislation is contrary to Community law in that it purports, but fails, to implement some binding, but not directly effective, Community law provision (see Collins, pp. 119–120).

118 See notes 120–122 below.

119 Art. 177 of the Treaty of Rome confers on the European Court of Justice jurisdiction to give preliminary rulings concerning inter alia either the interpretation of the Treaty or the validity or interpretation of acts of the institutions of the Community. The Article provides in effect that any court or tribunal of a Member state may request a preliminary ruling on any such issue if the court or tribunal considers that a ruling is necessary to enable it to give judgment in a case of which it is seised.

120 E.g., R. v. Goldstein [1983] 1 W.L.R. 151; cf. R. v. Henn [1981] A.C. 850, in which the House of Lords overturned the refusal of the Court of Appeal to make a reference. The House would have refused to make a reference on the ground that the point was clearly to be decided in a certain way, had it not been for the fact that the refusal of the Court of Appeal had been based on the view that the point was clearly to be decided in the opposite way!

121 E.g., Stoke-on-Trent City Council v. B & Q p.l.e. [1991] Ch. 48; Kirklees BC v. Wickes Ltd., [1991] 3 W.L.R. 985.

122 R. v. Tymen [1981] 2C.M.L.R. 544; [1982] 2 CM.L.R. 111;R. v. Thompson [1979] 1 CM. L.R. 47: in both cases the Crown Court refused to refer, but a reference was made by the Court of Appeal (Collins p. 188); R. v. Kirk [1985] 1 All E.R. 453: magistrates made no reference; reference made by Crown Court on appeal.

123 In R. v. Henn [1981] A.C. 850—see text to note 138 below.

124 E.g., R. v. Plymouth JJ., ex p. Rogers [1982] OB. 863; Torfaen B.C. v. B & Q p.l.c. [1990] 2 Q.B. 19.

125 Costa v. ENEL [1964] CM.L.R. 425, 454.

126 [1980] 3 CM.L.R. 220.

127 Collins, p. 188. Sec similarly, R. v. Tymen [1981] 2 C.M.L.R. 544; case 269/80 [1982] 2 C.M.L.R. Ill where the European Court's replies to a request from the Court of Appeal made it clear that UK regulations re fishing net mesh size were invalid under Community law.

128 Collins, p. 167.

129 [1990] 2 OB. 19.

130 In this case, the point went to the House of Lords via different proceedings raising the same point: see Stoke-on-Trent City Council v. B & Q p.l.e. [1991] Ch. 48. In July 1991 the House of Lords made a further reference to the ECJ.

131 Cases such as Portsmouth City Council v. Richards [1989] 1 C.M.L.R. 673 where English courts have both granted interlocutory injunctions against and refused references to defendants advancing a vires defence are not cases of the Quietlynn type (see part II(C) above) where a vires defence was disallowed—as the Court of Appeal pointed out in Richards, the grant of an interlocutory injunction does not indicate any view on the probable outcome of the case; and, moreover, as Kirklees BC v. Wickes Ltd. [1991] 4 All E.R. 240 now shows, an interlocutory injunction will not normally be granted without a cross-undertaking. It seems that in cases with a Community law element, the rule re cross-undertakings applies as strongly to the Crown as to any other public authority. For the position in purely domestic cases, see note 64 above.

132 Above, Part II.

133 See cases cited in notes 120–124 above. See also Collins, p. 183.

134 [1982] Q.B. 863.

135 See note 117 above.

136 Case 166/73 [1974] E.C.R. 33 at 38. Emphasis added.

137 [1982] Q.B. 863 at 865–866. For the view that a decision of a national court to make an Art. 177 reference should not be reviewable in the national legal system, see O'Keeffe (1984) 9 E.L. Rev. 87.

138 [1981] A.C. 850, 904.

139 [1978] 3 CM.L.R. 263.

140 [1982] 2 CM.L.R. 111.

141 Part IV.

142 [1985] 3 C.M.L.R. 759. For other reported cases where the legality of UK official action has turned on the validity of Community legislation, see Collins, p. 211 fn. 12.

143 Simmenthal case—quoted above.

144 See Rheinmühlen case—quoted above.

145 See part II above.

146 Foto-Frost v. Hauptzollaml Lübeck-Ost [1988] 3 C.M.L.R. 57.

147 Ibid., at 80.

148 Collins, p. 181.

149 Note, however, that in the more recent Zuckerfabrik litigation (Cases 143/88 and 92/89. not yet reported) the ECJ has held that a national court faced with what we have labelled a “dual invalidity” challenge may give interim relief against the allegedly invalid measures, pending the European Court's response to the Art. 177 reference.

150 In R. v. Pharmaceutical Society of Great Britain, ex p. Assocn. of Pharmaceutical Importers [1987] 3 C.M.L.R. 951 at 972. See also Bingham J.'s reference (in Customs & Excise Cmrs. v. ApS Samex [1983] 1 All E.R. 1042 at 1055) to the “panoramic view of the Community and its institutions” enjoyed uniquely by the European Court.

151 In the SpA International case [1983] 2 C.M.L.R. 593: see Collins at p. 212.

152 See Hartley, T.C., The Foundations of European Community Law (2nd ed., 1988). p. 438.

153 [1988] O.B. 114; above, part II(C).

154 For the costs and legal aid consequences of this, see Collins, pp. 207 et seq.

155 See above, part II(F).

156 Part III above.

157 [1988]3C.M.L.R. 57.

158 Text to note 148 above.

159 “Preliminary” in the Art. 177 sense—i.e.. prior to the determination of the case by the referring court. The word carries no sense of provisionality.

160 In Bulmer v. Bollinger [1974] Ch. 401 and later cases.

161 Per Simon Brown J. in R. v. Oxford Crown Court, ex p. Smith (see note 55, above).

162 Per Lord Diplock in R. v. Henn [1981] A.C. 850, 904, speaking of Art. 177 references.

163 For the role of the parties in the proposed procedure, see below.

164 per Bingham J. (on the exercise of discretion to make an Art. 177 reference) in Customs and Excise Cmrs. v. ApS Samex [1983] 1 All E.R. 1042, 1056.

165 This consideration has figured prominently in the case law both on Art. 177 and on the High Court's exercise of its power to try preliminary questions of law: RSC Ord. 33 rr. 3, 4; Ord. 18 r. 11. English courts are generally reluctant to make references (whether under Art. 177 in EC cases or under RSC Ord. 33 re preliminary points of law) before facts arc found. But it is not uncommon for a defendant who raises a vires defence not to dispute the other side's factual allegations—see, e.g., the Hutchinson, Quiellynn, Henn, and Torfaen cases dealt with earlier. In such cases it will be clear at a very early stage that the vires issue will require to be resolved in order for the case to be disposed of. in these circumstances a reference of the vires issue would probably not prove to be a “treacherous short cut” (per Lord Scarman. speaking of preliminary points of law. in Tilling v. Whileman [1980] A.C. 1 at 25).

166 Eg., Torfaen B.C. v. B [1990] 2 OB. 19; Stoke-on-Trent City Council v. B & Q p.l.c. [1991] Ch. 48.

167 E.g.. Portsmouth Cily Council v. Richards [1989] I C.M.L.R. 673.

168 Sec above, notes 64. 131.

169 [1988] Q.B. 114; above, part 1I(C).

170 170 It seems that under current provisions a criminal legal aid certificate does not extend to the costs either of an application for judicial review of, or of an appeal to the High Court by way of case stated against, a determination by a criminal court. Consideration might be given to the possibility of extending a criminal certificate to the costs of such a challenge.

171 See above, part II(C).

172 172 Part II(D).

* I wish to thank colleagues at Durham University, in particular Prof. David O'Keeffe, Bob Sullivan, Prof. David Vaughan and Colin Warbrick, for their encouragement and advice in the writing of this article.

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