If there is one expression sure to be used by home educators in letters, blog posts, submissions to select committees and complaints to local authorities; it must surely be ‘ultra vires’! It is brandished like a talisman or magic incantation by many parents, as though the words alone will act to discourage interest or interference in the lifestyle which they have chosen for their children. This is absurd and in this article we shall see why.
‘Ultra vires’ is simply a Latin phrase meaning ‘beyond one’s legal power or authority’. It is sometimes translated as ‘beyond the law’ and this has given some parents the idea that an ‘ultra vires’ action is in some sense ‘against the law’ or illegal. Nothing of the sort. To understand the concept of ultra vires, as applied to local authorities, it is necessary to go back a few years, to the situation as it existed before 2000. Until the passing of the Local Government Act 2000, local authorities were very strictly bound in what they could and could not do. Essentially, they could only do those things which legislation specifically gave them the power to do. If they attempted something else, they were open to challenge that their actions were ultra vires. All that was necessary to prove this was to show that the local authority had not been required by law to undertake some duty or project. I worked in the London boroughs of Hackney and Haringey during the 1980s and 1990s and this sort of legal challenge was not uncommon.
The Local Government Act 2000 changed all that. Section 2 gave local authorities the general power to promote well-being socially and economically. They are no longer restricted only to doing what they are legally required to do, but can take any steps they feel necessary in that direction. There are limits of course. They cannot undertake actions which they are specifically forbidden to take by other laws. This act had the effect of making most ultra vires challenges exceedingly hard to sustain against local authorities . In the case of the monitoring of home education, such a challenge is now all but impossible.
Here is the basis for many of the complaints by home educating parents that their local authority is going beyond its authority; further than its legal powers. In the 2007 Guidelines for Local Authorities on Elective Home Education, we find this clear and unambiguous statement of the legal position:
Local authorities have no statutory duties in relation to monitoring the quality of home education on a routine basis.
We know that some local authorities do monitor the quality of home education on a routine basis, so surely this is ultra vires? They are going beyond their authority? Before 2000, this would almost certainly have been the case and a challenge in the courts might well have succeeded. Not now though. The monitoring of home education is undertaken as part of the general power of pursuing social well-being. There may be no duty to monitor home education, but there is certainly no law forbidding it! As such, local authorities may simply go ahead and do it. To make this a little clearer let us consider the case of a local authority which insures something with a particular company. They have no duty to use that company, but they are free to do so if they wish.
Let us sum things up so that they become clearer.
1. Local authorities have no duty to monitor home education.
2. No legislation forbids local authorities to monitor home education.
3. To undertake a duty intended for social well-being, although not
specified in any legislation, is permitted under the 2000 Local
Government Act, as long as the action is not forbidden elsewhere in
legislation.
Of course, there is nothing to stop anybody from seeking a judicial review of such actions by a local authority. I have heard of three cases where preliminary moves have been made in this direction. In each case, solicitors, and in one case counsel, advised that the case had no legs.
I hope that this has made things a little clearer about the doctrine of ultra vires. Cases of this sort against local authorities since the 2000 Local Government Act have gone into freefall and other developments are likely to make a challenge on this ground even less likely to succeed. It might be time for parents to stop scattering the phrase 'ultra vires' around indiscriminately in their communications, because all it really tells a local authority is that the person making this threat is hopelessly out of touch with the modern world!