Do the Burial Acts or any other legislation confer discretionary power on the Secretary of State to issue exhumation licences for land where the Burial Acts do not apply? Surely this cannot be a grey area of law, i.e. either there is or there is not legitimate power? Bird's Law Dictionary says of ultra vires, "An act in excess of the authority conferred by law and therefore invalid". Ultra vires covers “abuse of power, as where something is done unjustifiably, for the wrong reasons or by the wrong improper motive, or a false step in procedure, makes an administrative act just as illegal as does a flagrant excess of authority”,(Wade, H.W.R. (1988:39) ‘Administrative Law’ 6th ed., OUP). “..the powers of all...public authorities are subordinated to the law...”(ibid p.4) “The primary purpose of admin. law ... is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse”(ibid p.5). “...ministers and local authorities are required by unwritten law to exercise their various statutory powers reasonably and only upon relevant grounds...” (ibid p.6) “The essence of admin. law lies in judge-made doctrines which apply right across the board and which therefore set legal standards of conduct for public authorities generally” (ibid p.6). When ministers “may make such orders as (they) think fit” they remain constrained by “the bounds of reasonableness”(ibid p.9) “The secondary meaning of the rule of law ... is that government should be conducted within a framework of recognised rules and principles which restrict discretionary power” (ibid p.23). Where ministers may impose such conditions as they think fit, “the courts will not allow these powers to be used in ways which Parliament is not thought to have intended” (ibid p.24). “When acting outside their powers, therefore, public authorities are as liable” as private individuals p.34. The liability of statutory bodies for the misdeeds of their servants was settled by the House of Lords in a case of 1866 (LR 1 HL 93) “All who participate in a wrongful act are jointly and equally liable. It is a fundamental rule that every minister, official or other agent who commits an actionable wrong is fully liable personally and that superior orders are no defence” (ibid p.34). “In the case of unauthorised action the court’s principal weapon is the doctrine of ultra vires (going beyond available powers and therefore invalid) which as will be seen is the foundation of a large part of administration law” (ibid p.37). “Parliament is not expected to incorporate (explicitly, these basic principles) in every Act ...” (ibid p.40). “... the more sophisticated types of malpractice, such as unreasonableness, irrelevant considerations, improper motives and breach of natural justice” (ibid p.42).

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