Municipal Boroughs and Ultra‐ Vires
| Published date | 01 September 1949 |
| DOI | http://doi.org/10.1111/j.1467-9299.1949.tb02695.x |
| Date | 01 September 1949 |
CORRESPONDENCE
Municipal
Boroughs
and
Ultra-
Vires
Sir,
The article by Mr. Keith-Lucas
which appeared in the Summer issue
of the
JOURNAL
(Vol.
xxvii., pp. 87/90)
is of considerable interest and sets out a
clear picture of this particular problem.
The conclusion, in which the author
suggests or implies that the boroughs
could act to a greater extent than at
present as
a
common law corporation,
by the extension or provision of services
not covered by statute, is attractive, and
one which
I
would like to see carried out.
I
do feel, however, that regard must be
had to a factor not adequately discussed
in the original article-namely, the
position
of
those boroughs which have
adopted the system of district audit for
the whole of their accounts.
It
will be recalled that the Local
Government Act 1933 provides that
certain services-mainly those grant-
aided-must be included within the
purview of the district auditor, with an
option given to the Council to extend
this method
of
audit to the remainder of
their accounts. Those services which
are compulsorily
so
audited are already
in a field covered by statute and con-
sequently, applying the dicta quoted in
the article, a municipal borough would
have
no
power in these cases to act
purely as a common law corporation
but must be guided by statute.
It
follows that any action undertaken
under common law would be included
in the group of services not automatically
subject to district audit, and
it
would
seem that the district auditor, in having
regard to his duties under Section
228
of
the
1933
Act (disallowance of items of
account contrary to law), would have
regard to the case law
on
the subject.
In addition to the cases dealt
with
in
the
article, regard must also surely be had to
A.G.
v.
Aspinall 1837 and
A.G.
w.
Lichfield Corporation
1848.
These
cases (admittedly prior to the Leicester
case of
1943)
detract somewhat from the
strength of the position in common law
suggested by Mr. Keith-Lucas by their
reference to trust funds and application
of
rate income.
It
is suggested therefore
that the district auditor, particularly
in
view
of
the uncertainty attaching to the
Leicester decision, would very much
tend to consider the legality of expendi-
ture by reference only to statute law.
In other words, he would regard the
borough in the same light as a statutory
corporation ‘and apply the same rulings.
Furthermore, the Local Government
Act
1933
(Section
228)
gives power
to the Minister of Health to issue a
covering sanction to local authorities
for expenditure not apparently legal and
the effect of this sanction is to remove
the question of legality from the purview
of the district auditor. The use which
has been made in practice (and it should
be remembered that this power has been
in existence for some long time before
the 1933
Act)
has been in cases of iso-
lated expenditure, mainly non-recurring,
and it is suggested that sanction would
not be given under this provision to
anything
in
the nature
of
a continuing
service.
The point in the previous paragraph
is relevant to the discussion as it is pro-
bable that the district audltor,
if
not the
Council, would require the use of this
power
of
application to the Minister.
It
follows that,
in
view of the practice
of the Minister in previous cases, it is
doubtful
if
consent would be given to
expenditure
on
anything in the nature of
a new service not covered by a specific
statute. This fact would,
I
suggest,
tend
to
make the majority
of
boroughs
hesitant to act as a common law authority
as the auditor would obviously have
regard to the Minister’s decision.
It
would still remain open for the
borough to test the position by way of
providing a new service, relying
on
common law authority and leaving the
result to be considered by the Courts,
either directly or indirectly following a
district auditor’s disallowance and
SLU-
charge.
In view of these remarks it
is
con-
sidered that very little can or will be
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