Sources of English Constitutional History: Chapter 139

139. RECORDS OF JUDICIAL CASES (1884-1935)

(A) Bradlaugh v. Gossett (1884)[1]

... The resolution of the house of commons of the 9th of July, 1883, read with the correspondence between the speaker and Mr. Bradlaugh, shows that for reasons which are not before us the house of commons resolved that Mr. Bradlaugh, who had been duly elected member for Northampton, should not be permitted to take the oath prescribed by law for members duly elected, and that he should be excluded, if necessary, by actual force from the house, unless he would engage not to do so. We are asked to declare this order void, and to restrain the serjeant-at-arms from enforcing it.

I may observe, before considering this question, that but for the amendment made at the hearing I, at least, should have felt bound to decide the case on a much narrower ground than that on which I think we ought to deal with it. Taken by itself, the order of the 9th of July states nothing except that the house had by resolution excluded a member, who in the judgment of the house had disturbed its proceedings, till he undertook not further to disturb it. It is obvious that we could not interfere with what might be a mere measure of internal discipline. The order as it stands is consistent with the supposition that Mr. Bradlaugh, on presenting himself to take the oath, had in some way misconducted himself, and that the house had ordered him to be excluded till he promised not to repeat his misconduct. With such a measure of internal discipline we obviously could not interfere. The correspondence with the speaker certainly sets the matter in a different light. I cannot read the statement of claim as asserting less or interpret the demurrer as admitting less than what I have already stated; and this raises the question which the parties probably wished to have decided in a very broad way.

The legal question which this statement of the case appears to me to raise for our decision is this: Suppose that the house of commons forbids one of its members to do that which an act of parliament requires him to do, and, in order to enforce its prohibition, directs its executive officer to exclude him from the house by force if necessary; is such an order one which we can declare to be void and restrain the executive officer of the house from carrying out? In my opinion, we have no such power. I think that the house of commons is not subject to the control of her majesty's courts in its administration of that part of the statute law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable....

The Parliamentary Oaths Act prescribes the course of proceeding to be followed on the occasion of the election of a member of parliament. In order to raise the question now before us, it is necessary to assume that the house of commons has come to a resolution inconsistent with the act; for, if the resolution and the act are not inconsistent, the plaintiff has obviously no grievance. We must, of course, face this supposition and give our decision upon the hypothesis of its truth. But it would be indecent and improper to make the further supposition that the house of commons deliberately and intentionally defies and breaks the statute law. The more decent, and I may add, the more natural and probable supposition is that, for reasons which are not before us and of which we are therefore unable to judge, the house of commons considers that there is no inconsistency between the act and the resolution. They may think there is some implied exception to the act. They may think that what the plaintiff proposes to do is not in compliance with its directions. With this we have nothing to do. Whatever may be the reasons of the house of commons for their conduct, it would be impossible for us to do justice without hearing and considering those reasons; but it would be equally impossible for the house, with any regard for its own dignity and independence, to suffer its reasons to be laid before us for that purpose, or to accept our interpretation of the law in preference to its own. It seems to follow that the house of commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that, even if that interpretation should be erroneous, this court has no power to interfere with it directly or indirectly....

The plaintiff argued his own case before us at length. It is due to him to state the reasons why his arguments do not convince me. He referred to a great number of authorities; but his argument was in substance short and simple. He said that the resolution of the house of commons was illegal, as the house had no power to alter the law of the land by resolution; and, admitting that the house has power to regulate its own procedure, he contended that in preventing him from taking his seat, the house went beyond matter of internal regulation and procedure, as they deprived both him and the electors of Northampton of a right recognized by law, which ought to be protected by the law; and so inflicted upon him and them wrongs which would be without a remedy if we failed to apply one. I think that each part of this argument requires a plain, direct answer.

It is certainly true that a resolution of the house of commons cannot alter the law. If it were ever necessary to do so, this court would assert this doctrine to the full extent to which it was asserted in Stockdale v. Hansard. The statement that the resolution of the house of commons was illegal must, I think, be assumed to be true, for the purposes of the present case. The demurrer for those purposes admits it. We decide nothing unless we decide that, even if it is illegal in the sense of being opposed to the Parliamentary Oaths Act, it does not entitle the plaintiff to the relief sought.... I do not say that the resolution of the house is the judgment of a court not subject to our revision; but it has much in common with such a judgment. The house of commons is not a court of justice; but the effect of its privilege to regulate its own internal concerns practically invests it with a judicial character when it has to apply to particular cases the provisions of acts of parliament. We must presume that it discharges this function properly and with due regard to the laws, in the making of which it has so great a share. If its determination is not in accordance with law, this resembles the case of an error by a judge whose decision is not subject to appeal. There is nothing startling in the recognition of the fact that such an error is possible. If, for instance, a jury in a criminal case give a perverse verdict, the law has provided no remedy. The maxim that there is no wrong without a remedy does not mean, as it is sometimes supposed, that there is a legal remedy for every moral or political wrong. If this were its meaning, it would be manifestly untrue. There is no legal remedy for the breach of a solemn promise not under seal and made without consideration; nor for many kinds of verbal slander, though each may involve utter ruin; nor for oppressive legislation, though it may reduce men practically to slavery; nor for the worst damage to person and property inflicted by the most unjust and cruel war. The maxim means only that legal wrong and legal remedy are correlative terms; and it would be more intelligibly and correctly stated, if it were reversed, so as to stand, "Where there is no legal remedy, there is no legal wrong."

The assertion that the resolution of the house goes beyond matter of procedure, and that it does in effect deprive both Mr. Bradlaugh himself and his constituents of legal rights of great value, is undoubtedly true if the word "procedure" is construed in the sense in which we speak of civil procedure and criminal procedure, by way of opposition to the substantive law which systems of procedure apply to particular cases. No doubt, the right of the burgesses of Northampton to be represented in parliament, and the right of their duly elected representative to sit and vote in parliament and to enjoy the other rights incidental to his position upon the terms provided by law are in the most emphatic sense legal rights, legal rights of the highest importance, and in the strictest sense of the words. Some of these rights are to be exercised out of parliament, others within the walls of the house of commons. Those which are to be exercised out of parliament are under the protection of this court, which, as has been shown in many cases, will apply proper remedies if they are in any way invaded, and will in so doing be bound, not by resolutions of either house of parliament, but by its own judgment as to the law of the land, of which the privileges of parliament form a part. Others must be exercised, if at all, within the walls of the house of commons; and it seems to me that, from the nature of the case, such rights must be dependent upon the resolutions of the house. In my opinion the house stands with relation to such rights and to the resolutions which affect their exercise, in precisely the same relation as we, the judges of this court, stand in to the laws which regulate the rights of which we are the guardians, and to the judgments which apply them to particular cases; that is to say, they are bound by the most solemn obligations which can bind men to any course of conduct whatever, to guide their conduct by the law as they understand it. If they misunderstand it or (I apologize for the supposition) wilfully disregard it, they resemble mistaken or unjust judges; but in either case there is, in my judgment, no appeal from their decision. The law of the land gives no such appeal; no precedent has been or can be produced in which any court has ever interfered with the internal affairs of either house of parliament, though the cases are no doubt numerous in which the courts have declared the limits of their powers outside of their respective houses. This is enough to justify the conclusion at which I arrive.

We ought not to try to make new laws, under the pretence of declaring the existing law. But I must add that this is not a case in which I at least feel tempted to do so. It seems to me that, if we were to attempt to erect ourselves into a court of appeal from the house of commons, we should consult neither the public interest, nor the interests of parliament and the constitution, nor our own dignity. We should provoke a conflict between the house of commons and this court, which in itself would be a great evil; and, even upon the most improbable supposition of their acquiescence in our adverse decision, an appeal would lie from that decision to the court of appeals and thence to the house of lords, which would thus become the judge in the last resort of the powers and privileges of the house of commons.

For these reasons I am of opinion that there must be judgment for the defendant.

Law Reports, Queen's Bench Division, XII, 277 f.

(B) Kruse v. Johnson (1898)[2]

The county council of Kent, claiming to act under their statutory powers, made the following by-law: "No person shall sound or play upon any musical or noisy instrument or sing in any public place or highway within fifty yards of any dwelling-house after being required by any constable, or by an inmate of such house personally, or by his or her servant, to desist."

The appellant was summoned before the magistrates for offending against this by-law, when it was proved that, on October 17, 1897, he persisted in singing in a public highway within fifty yards of a dwelling-house, after having been required by a police constable to desist. It was further proved by the occupier of the dwelling-house that the singing of the appellant and those with him was an annoyance to such occupier. The occupier had not, on the day in question, set the constable in motion, but he had on previous occasions complained to the police of the appellant's singing. The magistrates convicted the appellant, and against that conviction the present appeal is brought.

The question reserved for this court is whether the by-law is valid. If valid, the conviction is to stand. It is objected that the by-law is ultra vires, on the ground that it is unreasonable and therefore bad. It is necessary, therefore, to see what is the authority under which the by-law in question has been made, and what are the relations between its framers and those affected by it. But first it seems necessary to consider what is a by-law. A by-law of the class we are here considering I take to be an ordinance affecting the public, or some portion of the public, imposed by some authority clothed with statutory powers ordering something to be done or not to be done, and accompanied by some sanction or penalty for its non-observance. It necessarily involves restriction of liberty of action by persons who come under its operation as to acts which, but for the by-law, they would be free to do or not do as they pleased. Further, it involves this consequence: that, if validly made, it has the force of law within the sphere of its legitimate operation.

In the present case we are dealing with a by-law made by a local representative body, namely, the county council of Kent, which is created under the Local Government Act, 1888,[3] and is endowed with the powers of making by-laws given to municipal corporate bodies under the Municipal Corporations Act, 1882.[4] Section 16 of the Local Government Act, 1888, provides that a county council shall have the same power of making by-laws in relation to their county as the council of a borough have in relation to their borough; and it further provides that section 187 of the Public Health Act of 1875[5] shall apply to such by-laws. I will take these statutes in the order of time.

Section 182 of the act of 1875 provides that all by-laws made by a local authority under that act shall be under their common seal, and may be altered or repealed by a subsequent by-law; but no by-law shall be repugnant to the laws of England or to the provisions of the act. Section 183 gives power to impose penalties. Section 184 provides that by-laws shall not take effect until confirmed by the local government board, which may allow or disallow them, and before their confirmation notice of intention to apply for confirmation must be advertised, and for a month at least before such application a copy of the proposed by-laws must have been kept at the office of the local authority for the inspection of ratepayers, and the clerk of the local authority is bound to furnish on application a copy of the proposed by-laws, or a part of them, to any ratepayer on a certain payment being made. Section 23 of the act of 1882 provides that the council of the borough may from time to time make such by-laws as to them seem meet for the good rule and government of the borough, and for the prevention and suppression of nuisances not already punishable in a summary manner, and they may, by such by-laws, appoint such fines, not exceeding 5, as they deem necessary for the prevention of offences against the by-laws. It is under this authority that the by-law in question was framed.

What are the checks or safeguards under which this very wide authority of making by-laws is exercisable? The same section 23 further provides that no by-law can be made unless two-thirds of the whole number of the council are present; and, when so made, it shall not come into force until the expiration of forty days after a copy thereof has been fixed on the town hall; and it shall not come into force until the expiration of forty days after a copy sealed with the corporate seal has been sent to the secretary of state; and if, within those forty days, the queen, with the advice of her privy council, disallows a proposed by-law or part thereof, such by-law, or such part, shall not come into force, and the queen may, within the forty days, enlarge the time within which the by-law shall not come into force. We thus find that parliament has thought fit to delegate to representative public bodies in towns and cities, and also in counties, the power of exercising their own judgment as to what are the bylaws which to them seem proper to be made for good rule and government in their own localities. But that power is accompanied by certain safeguards....

I agree that the presence of these safeguards in no way relieves the court of the responsibility of inquiring into the validity of by-laws where they are brought in question, or in any way affects the authority of the court in the determination of their validity or invalidity. It is to be observed, moreover, that the by-laws, having come into force ... are not unchangeable. The power is to make by-laws from time to time as to the authority shall seem meet; and if experience shows that in any respect existing by-laws work hardly or inconveniently, the local authority, acted upon by the public opinion, as it must necessarily be, of those concerned, has full power to repeal or alter them. It need hardly be added that, should experience warrant that course, the legislature which has given may modify or take away the powers they have delegated.

I have thought it well to deal with these points in some detail, and for this reason, that the great majority of the cases in which the question of by-laws has been discussed are not cases of by-laws of bodies of a public representative character entrusted by parliament with delegated authority, but are for the most part cases of railway companies, dock companies, or other like companies, which carry on their business for their own profit, although incidentally for the advantage of the public. In this class of case it is right that the courts should jealously watch the exercise of these powers and guard against their unnecessary or unreasonable exercise to the public disadvantage. But when the court is called upon to consider the by-laws of public representative bodies, clothed with the ample authority which I have described and exercising that authority accompanied by the checks and safeguards which have been mentioned, I think the consideration of such by-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, "benevolently" interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered. This involves the introduction of no new canon of construction. But, further, looking to the character of the body legislating under the delegated authority of parliament, to the subject matter of such legislation, and to the nature and extent of the authority given to deal with matters which concern them, and in the manner which to them shall seem meet, I think courts of justice ought to be slow to condemn as invalid any by-law, so made under such conditions, on the ground of supposed unreasonableness....

I do not mean to say that there may not be cases in which it would be the duty of the court to condemn by-laws, made under such authority as these were made, as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men; the court might well say, "Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires." But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can properly be regarded. A by-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. Surely it is not too much to say that in matters which directly and mainly concern the people of the county, who have the right to choose those whom they think best fitted to represent them in their local government bodies, such representatives may be trusted to understand their own requirements better than judges....

In my opinion, judged by the test of reasonableness, even in its narrower sense, this is a reasonable by-law; but, whether I am right or wrong in this view, I am clearly of opinion that no court of law can properly say that it is invalid. In the result the conviction appealed from must, in my opinion, be affirmed.

Ibid., 1898, II, 96-103.

(C) Local Government Board v. Arlidge (1915)[6]

... Which of these opinions (expressed by judges in the court of appeals) was right can only be determined by referring to the language of the legislature. Here, as in other cases, we have simply to construe that language and to abstain from guessing at what parliament had in its mind, excepting so far as the language enables us to do so. There is no doubt that the question is one affecting property and the liberty of a man to do what he chooses with what is his own. Such rights are not to be affected unless parliament has said so. But parliament, in what it considers higher interests than those of the individual, has so often interfered with such rights on other occasions that it is dangerous for judges to lay much stress on what a hundred years ago would have been a presumption considerably stronger than it is to-day. I therefore turn to the acts of parliament which are relevant with the sense that there is little justification for looking in advance for the embodiment of one scheme as more probable than the embodiment of another.

The closing of dwelling-houses as being dangerous or injurious to health, or unfit for habitation, is no new jurisdiction. The Housing of the Working Classes Act, 1890, gave to the local authority the power to take proceedings to enforce penalties and closing orders before courts of summary jurisdiction, to be followed, in certain circumstances, by demolition orders. Under that act the owner of the house had an appeal to quarter sessions. This power of closing was somewhat extended by the Housing of the Working Classes Act, 1903, but the principle of the application being to a court of justice remained the same. A change of this principle was introduced in the Housing and Town-Planning Act, 1909. The local authority was empowered itself to make the closing order, certain conditions having been complied with, and it was given power to determine the closing order if satisfied that the house in respect of which the order had been made had subsequently been rendered fit for habitation. In respect of both a closing order and a determining order, the owner was given a right of appeal. But the appeal was to be, not as before to quarter sessions, but to the local government board. Stringent powers of inspection were given to both the local authority and the local government board. In the case of an appeal, the procedure as to everything, including costs, was to be such as the board might by rules determine. The board was to have power to make such order on any appeal as it should think equitable. It could state a case, but only on a question of law, for the opinion of the high court, and could be compelled by the high court to do so. The rules were to provide that the board should not dismiss any appeal without having first held a public local inquiry.... My lords, it is obvious that the act of 1909 introduced a change of policy. The jurisdiction, both as regards original applications and as regards appeals, was in England transferred from courts of justice to the local authority and the local government board, both of them administrative bodies, and it is necessary to consider what consequences this change of policy imported.

My lords, when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it does not follow that the procedure of every such tribunal must be the same. In the case of a court of law, tradition in this country has prescribed certain principles to which in the main the procedure must conform. But what that procedure is to be in detail must depend on the nature of the tribunal. In modern times it has become increasingly common for parliament to give an appeal in matters which really pertain to administration, rather than to the exercise of the judicial functions of an ordinary court, to authorities whose functions are administrative and not in the ordinary sense judicial. Such a body as the local government board has the duty of enforcing obligations on the individual which are imposed in the interests of the community. Its character is that of an organization with executive functions. In this it resembles other great departments of the state. When, therefore, parliament entrusts it with judicial duties, parliament must be taken, in the absence of any declaration to the contrary, to have intended it to follow the procedure which is its own, and is necessary if it is to be capable of doing its work efficiently.

I agree with the view expressed in an analogous case by my noble and learned friend Lord Loreburn.... He laid down that, in disposing of a question which was the subject of an appeal to it, the board of education was under a duty to act in good faith and to listen fairly to both sides, inasmuch as that was a duty which lay on every one who decided anything. But he went on to say that he did not think it was bound to treat such a question as though it were a trial. The board had no power to administer an oath, and need not examine witnesses. It could, he thought, obtain information in any way it thought best, always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view. If the board failed in this duty, its order might be the subject of certiorari and it must itself be the subject of mandamus.[7]

My lords, I concur in this view of the position of an administrative body to which the decision of a question in dispute between parties has been entrusted. The result of its inquiry must, as I have said, be taken, in the absence of directions in the statute to the contrary, to be intended to be reached by its ordinary procedure. In the case of the local government board it is not doubtful what this procedure is. The minister at the head of the board is directly responsible to parliament like other ministers. He is responsible not only for what he himself does but for all that is done in his department. The volume of work entrusted to him is very great and he cannot do the great bulk of it himself. He is expected to obtain his materials vicariously through his officials, and he has discharged his duty if he sees that they obtain these materials for him properly. To try to extend his duty beyond this and to insist that he and other members of the board should do everything personally would be to impair his efficiency. Unlike a judge in a court, he is not only at liberty but is compelled to rely on the assistance of his staff. When, therefore, the board is directed to dispose of an appeal, that does not mean that any particular official of the board is to dispose of it....

Provided the work is done judicially and fairly in the sense indicated by Lord Loreburn, the only authority that can review what has been done is the parliament to which the minister in charge is responsible.... So long as the board followed a procedure which was usual and not calculated to violate the tests to which I have already referred, I think that the board was discharging the duty imposed on it in the fashion parliament must be taken to have contemplated when it deliberately transferred the jurisdiction, first, from a court of summary jurisdiction to the local authority, and then, for the purposes of all appeals, from quarter sessions to an administrative department of the state....

For the reasons I have given, I have arrived at the conclusion that ... the order of the divisional court should be restored.

Law Reports, Appeal Cases, 1915, pp. 130 f.

(D) The King v. Halliday (1917)[8]

My lords, the appellant in this case is a naturalized British subject of German birth who has been interned by an order made by the secretary of state under the powers of regulation 14 B, which was made under the Defence of the Realm Consolidation Act, 1914.[9] It was contended that regulation 14 B was not authorized by the act and was ultra vires.

It is beyond all dispute that parliament has power to authorize the making of such a regulation. The only question is whether on a true construction of the act it has done so. The relevant part of the act in question is section I, sub-section 1: —

"His majesty in council has power during the continuance of the present war to issue regulations for securing the public safety and the defence of the realm, and as to the powers and duties for that purpose of the admiralty and army council and of the members of his majesty's forces and other persons acting in his behalf; and may by such regulations authorize the trial by courts martial, or in the case of minor offences by courts of summary jurisdiction, and punishment of persons committing offences against the regulations, and in particular against any of the provisions of such regulations designed (a) to prevent persons communicating with the enemy or obtaining information for that purpose or any purpose calculated to jeopardize the success of the operations of any of his majesty's forces or the forces of his allies or to assist the enemy; or (b) to secure the safety of his majesty's forces and ships and the safety of any means of communication and of railways, ports, and harbours; or (C) to prevent the spread of false reports or reports likely to cause disaffection to his majesty or to interfere with the success of his majesty's forces by land or sea or to prejudice his majesty's relations with foreign powers; or (d) to secure the navigation of vessels in accordance with directions given by or under the authority of the admiralty; or (e) otherwise to prevent assistance being given to the enemy or the successful prosecution of the war being endangered."

The power conferred on his majesty is limited to the duration of the war and is to issue regulations for securing the public safety and the defence of the realm. The sub-section goes on to provide that his majesty may by such regulations authorize the trial and punishment of persons committing offences against the regulations, and especially against regulations designed for any of the purposes enumerated under heads (a), (b), (C), (d), and (e).... On the face of it, the statute authorizes in this sub-section provisions of two kinds: for prevention and for punishment. Any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the state. Any one who infringes such regulations will become the proper subject of punishment.

The regulation in question made under this statute is regulation 14 B of the Defence of the Realm (Consolidation) Regulations. It is as follows: —

"Where, on the recommendation of a competent naval or military authority or of one of the advisory committees hereinafter mentioned, it appears to the secretary of state that, for securing the public safety or the defence of the realm, it is expedient, in view of the hostile origin or associations of any person, that he shall be subjected to such obligations and restrictions as are hereinafter mentioned, the secretary of state may by order require that person forthwith, or from time to time, either to remain in, or to proceed to and reside in, such place as may be specified in the order, and to comply with such directions as to reporting to the police, restriction of movement, and otherwise as may be specified in the order, or to be interned in such place as may be specified in the order: provided that any such order shall, in the case of any person who is not a subject of a state at war with his majesty, include express provision for the due consideration by one of such advisory committees of any representations he may make against the order.... The advisory committees for the purposes of this regulation shall be such advisory committees as are appointed for the purpose of advising the secretary of state with respect to the internment and deportation of aliens, each of such committees being presided over by a person who holds or has held high judicial office....

It will be observed that any action of the secretary of state under this regulation is to be upon the recommendation of a competent naval or military authority or of an advisory committee. If on such recommendation it appears to the secretary of state that, for securing the public safety or the defence of the realm, it is expedient so to do, he may subject any person of hostile origin or associations to certain restrictions, one of which is internment. The order must, however, include provision in the case of any person, not being an enemy subject, for consideration of any representation which the person affected may make against the order by an advisory committee, which is to be presided over by a person who holds or has held high judicial office. The regulation, therefore, provides means for ascertaining whether any complaint against the justice or necessity of the order is well founded.

The order complained of was made by the home secretary on October 15, 1915, and is as follows: —

"Whereas, on the recommendation of a competent military authority appointed under the Defence of the Realm Regulations, it appears to me that, for securing the public safety and the defence of the realm, it is expedient that Arthur Zadig, of 56 Portsdown Road, Maida Vale, W., should, in view of his hostile origin and associations, be subjected to such obligations and restrictions as are hereinafter mentioned: I hereby order that the said Arthur Zadig shall be interned in the institution in Cornwallis Road, Islington, which is now used as a place of internment, and shall be subject to all the rules and conditions applicable to aliens there interned. If, within seven days from the date on which this order is served on the said Arthur Zadig, he shall submit to me any representations against the provisions of this order, such representations will be referred to the advisory committee appointed for the purpose of advising me with respect to the internment and deportation of aliens and presided over by a judge of the high court, and will be duly considered by the committee. If I am satisfied by the report of the said committee that this order may be revoked or varied without injury to the public safety or the defence of the realm, I will revoke or vary the order by a further order in writing under my hand. Failing such revocation or variation, this order shall remain in force. (Signed) John Simon, one of his majesty's principal secretaries of state. Whitehall, 15th October, 1915."

The truth of the recital that Zadig is a person of hostile origin and associations was not questioned, but it was insisted that parliament had not conferred the power to make such an order in the interest of the public safety against such persons. The order provides for representations being made against it and for their consideration by an advisory committee presided over by a judge of the high court, and states that, if the home secretary is satisfied by the report of such committee that the order may be revoked or varied without injury to the public safety and the defence of the realm, he will revoke or vary the order. As I have stated, the power of parliament: to authorize such a proceeding was not and could not be disputed. The only question is as to the construction of the act.

It was contended (1) that some limitation must be put upon the general words of the statute; (2) that there is no provision for imprisonment without trial; (3) that the provisions made by the Defence of the Realm Act, 1915, for the trial of British subjects by a civil court with a jury strengthened the contention of the appellant; (4) that general words in a statute could not take away the vested rights of the subject or alter the fundamental law of the constitution; (5) that the statute is in its nature penal and must be strictly construed; (6) that a construction said to be repugnant to the constitutional traditions of this country could not be adopted. Reference was made by the appellant's counsel to the history of the various interferences with a right to habeas corpus in times of public danger, and it was urged that, if it had been intended to interfere with personal liberty, this is the course which would have been adopted.

I am unable to accede to any of the arguments urged on behalf of the appellant. It was not, as I understand the argument, contended that the words of the statute are not in their natural meaning wide enough to authorize such a regulation as regulation 14 B, but it was strongly contended that some limitation must be put upon these words, as an unrestricted interpretation might involve extreme consequences — such as, it was suggested, the infliction of the punishment of death without trial. It appears to me to be a sufficient answer to this argument that it may be necessary in a time of great public danger to entrust great powers to his majesty in council and that parliament may do so, feeling certain that such powers will be reasonably exercised....

One of the most obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to help the enemy. It is to this that regulation 14 B is directed. The measure is not punitive but precautionary. It was strongly urged that no such restraint should be imposed except as the result of a judicial inquiry, and indeed counsel for the appellant went so far as to contend that no regulation could be made forbidding access to the seashore by suspected persons. It seems obvious that no tribunal for investigating the question, whether circumstances of suspicion exist warranting some restraint, can be imagined less appropriate than a court of law. No crime is charged. The question is whether there is ground for suspicion that a particular person may be disposed to help the enemy. The duty of deciding this question is by the order thrown upon the secretary of state, and an advisory committee presided over by a judge of the high court is provided to bring before him any grounds for thinking that the order may properly be revoked or varied. The statute was passed at a time of supreme national danger, which still exists. The danger of espionage and of damage by secret agents to ships, railways, munition works, bridges, etc., had to be guarded against. The restraint imposed may be a necessary measure of precaution, and in the interests of the whole nation it may be regarded as expedient that such an order should be made in suitable cases. This appears to me to be the meaning of the statute. Every reasonable precaution to obviate hardship which is consistent with the object of the regulation appears to have been taken. It was urged that, if the legislature had intended to interfere with personal liberty, it would have provided, as on previous occasions of national danger, for suspension of the rights of the subject as to a writ of habeas corpus. The answer is simple. The legislature has selected another way of achieving the same purposes, probably milder as well as more effectual than those adopted on the occasion of previous wars. The suggested rule as to construing penal statutes and the provision as to trial of British subjects by jury made by the Defence of the Realm Act, 1915, have no relevance in dealing with an executive measure by way of preventing a public danger.

The application of the present appellant was rejected by the divisional court, consisting of five members, and by the court of appeal, and in my opinion the present appeal ought to be dismissed.

Ibid., 1917, pp. 264-270.

(E) Attorney General v. De Keyser's Royal Hotel (1920)[10]

My lords: The present appeal is in the matter of petition of right presented by De Keyser's Royal Hotel, Ltd., the owners of the well-known hotel of that name, for compensation for the compulsory occupation of certain parts of their premises by the war office acting in the name and on behalf of the crown for purposes connected with the defence of the realm during the late war. The crown contests the right of the suppliants to compensation for such compulsory occupation, and pleads that it was an exercise of the royal prerogative and gave no right of compensation.

The facts of the case are not substantially in dispute, the real issue being a question of law of great and general importance.... In deciding the issues raised herein between the crown and the suppliants, the first question to be settled in the present case might be, to my mind, treated as a question of fact: namely, was possession in fact taken under the royal prerogative or under special statutory powers giving to the crown the requisite authority? Regarded as a question of fact, this is a matter which does not admit of doubt. Possession was expressly taken under statutory powers. The letter of May 1, 1916, from the representative of the army council to Mr. Whinney says: "I am instructed by the army council to take possession of the above property under the Defence of the Realm Regulations." It was in response to this demand that possession was given. It is not competent to the crown, who took and retained such possession, to deny that their representative was acting under the powers given to it by these regulations, the validity of which rests entirely on statute....

But when the crown elects to act under the authority of a statute, it, like any other person, must take the powers that it thus uses cum onere. It cannot take the powers without fulfilling the condition that the statute imposes on the use of such powers.

The Defence of the Realm Consolidation Act, 1914,[11] commenced by enacting that "his majesty in council has power to issue regulations for securing the public safety and the defence of the realm, and as to the powers and duties for that purpose of the admiralty and army council and of the members of his majesty's forces and other persons acting on his behalf." It then goes on to particularize certain subjects to which these regulations may relate, and in subsection 2 it deals with the question of the acquisition of land as follows: "Any such regulations may provide for the suspension of any restrictions on the acquisition or user of land or the exercise of the power of making by-laws, or any other power under the Defence Acts, 1842 to 1875, or the Military Lands Acts, 1891 to 1903."

The Defence Act, 1842,[12] ... is the last of a series of acts regulating the acquisition of lands and interests in land for purposes of the defence of the realm. These acts commence in 1708, and occur at intervals up to 1842.... But it is not necessary to dwell on their provisions, seeing that the Defence Act, 1842, repealed all such existing acts and laid down general provisions which have regulated since that time the procedure for the acquisition by the crown of land for such purposes. This act gives very wide powers to the crown. It has unrestricted powers of selection of the necessary lands, buildings, etc., to be taken. It contemplates in the first instance voluntary purchase, but, if that cannot be arranged, then the lands, etc., may be acquired compulsorily subject to certain certificates being obtained as to the necessity or expediency of the acquisition or in case of actual invasion. I am satisfied that it enables the crown to acquire either the property or the possession or use of it as it may need. In all cases compensation is to be paid by the crown, the amount to be settled by a jury.

The regulations and the act under which they are made must, of course, be read together, and it is in my opinion a sound inference from the language of sub-section 2 that the legislature intended that, so far as the acquisition or user of land was concerned, the regulations should take the form of action under the Defence Act, 1842, facilitated by the suspension of some or all of the restrictions which it imposes. The particular provisions relating to the taking of land or buildings are to be found in section 2 of the regulations. They empower the military authorities to take possession of any land or of any buildings where for the purposes of the defence of the realm it is necessary so to do. These are very wide powers, but so general are the powers of the Defence Act, 1842, that they would be attained by simply suspending the restrictions therein contained and allowing its powers to be put in force without them. Reading, therefore, this regulation with sub-section 2 of the act, I think it is clear that, in the case of acquisition and user of land under the regulations, we ought to consider them as authorizing action being taken under the Defence Act, 1842, save that no restrictions therein appearing are to be enforced. The duty of paying compensation cannot be regarded as a restriction. It is a consequence of the taking, but in no way restricts it, and, therefore, as the acquisition is made under the Defence Act, 1842, the suppliants are entitled to the compensation provided by that act.

On these grounds, therefore, I am of opinion that the suppliants are entitled to our judgment in this appeal. But it would be unsatisfactory in a case of such general importance to leave unconsidered the question whether, apart from the fact that the crown expressly purported to be acting under powers given to it by statute, the suppliants' claim could be maintained. To decide this question, one must consider the nature and extent of the so-called royal prerogative in the matter of taking or occupying land for the better defence of the realm. I have no doubt that in early days, when war was carried on in a simpler fashion and on a smaller scale than is the case in modern times, the crown, to whom the defence of the realm was entrusted, had wide prerogative powers as to taking or using the lands of its subjects for the defence of the realm when the necessity arose. But such necessity would be in general an actual and immediate necessity arising in face of the enemy.... The necessity would in almost all cases be local, and no one could deny the right of the crown to raise fortifications on or otherwise occupy the land of the subject in the face of the enemy, if it were necessary so to do.

Nor have I any doubt that in those days the subjects who had suffered in this way in war would not have been held to have any claim against the crown for compensation in respect of the damage they had thus suffered. It must not be forgotten that in those days the costs of war were mainly borne by the royal revenues, so that the king himself was the heaviest sufferer. The limited and necessary interference with the property of the subjects, of which I have spoken, would have been looked upon as part of the damage done by the war, which it had fallen to their lot to bear, and there is no reason to think that any one would have thought that he had a claim against the crown in respect of it. Certainly no trace of any such claim having been put forward is to be found.

This state of things lasted for several centuries.... But in the last three centuries very important changes have occurred, which have completely altered the position of the crown in such matters. In the first place, war has become far more complicated, and necessitates costly and elaborate preparations in the form of permanent fortifications, and otherwise, which must be made in times of peace. In the second place, the cost of war has become too great to be borne by the royal revenues; so that the money for it has to come from the people through the legislature, which long ago assumed, and has since retained, the command of all national resources. In the third place, the feeling that it was equitable that burdens borne for the good of the nation should be distributed over the whole nation and should not be allowed to fall on particular individuals has grown to be a national sentiment. The effect of these changes is seen in the long series of statutes relating to the occupation of land for the purposes of fortifications or otherwise for national defence, to which I have already referred and which cover the last two centuries. In all these acts provision was made for compensation to the individual whose lands were taken or used, and indeed there is clear evidence that for many years, prior to the first of these statutes, the crown acted on this principle. It is not necessary to examine these acts in detail. They were mostly local in their operation and frequently temporary, and usually related to specific fortifications which it was proposed to erect.

But towards the beginning of the last century the acts take on a more general and permanent form, and eventually they culminate in the Defence Act, 1842, which gives to the crown, through its properly appointed officials, the widest possible powers of taking land and buildings needed for the defence of the realm under a minutely defined procedure set out in the act. It contemplates, as I have already said, that the acquisition shall, as a rule, be by agreement; but it gives ample powers of compulsory acquisition if the necessity be duly vouched, or in case of an actual invasion. In all cases compensation for the taking or using of the land by the crown is to be assessed by a jury who (in the words of the act) have to find "the compensation to be paid, either for the absolute purchase of such lands, buildings, or other hereditaments, or for the possession or use thereof, as the case may be." This act was not limited either in time or place, and with small modifications, which are not material for our present purpose, is still in force.

What effect has this course of legislation upon the royal prerogative? I do not think that it can be said to have abrogated that prerogative in any way, but it has given to the crown statutory powers which render the exercise of that prerogative unnecessary, because the statutory powers that have been conferred upon it are wider and more comprehensive than those of the prerogative itself. But it has done more than this. It has indicated unmistakably that it is the intention of the nation that the powers of the crown in these respects should be exercised in the equitable manner set forth in the statute; so that the burden shall not fall on the individual, but shall be borne by the community.

This being so, when powers covered by this statute are exercised by the crown, it must be presumed that they are so exercised under the statute, and therefore subject to the equitable provision for compensation which is to be found in it. There can be no excuse for reverting to prerogative powers simpliciter, if indeed they ever did exist in such a form as would cover the proposed acquisition — a matter which is far from clear in such a case as the present, when the legislature has given to the crown statutory powers which are wider even than any one pretends that it possessed under the prerogative, and which cover all that can be necessary for the defence of the nation, and which are moreover accompanied by safeguards to the individual which are in agreement with the demands of justice. Accordingly, if the commandeering of the buildings in this case had not been expressly done under statutory powers, I should have held that the crown must be presumed to have acted under these statutory powers, and thus given to the subject the statutory right to compensation....

I am therefore of opinion that the suppliants are entitled to the declaration in the form approved of by the court below, and that this appeal should be dismissed with costs.

Ibid., 1920, pp. 546 f.

(F) Moore and Others v. The Attorney General of the Irish Free State (1935)[13]

... The petitioners claim to be owners of a fishery in the tidal waters of the River Erne in Ireland. They had brought an action in the Irish courts to enforce their claim and had succeeded before the trial judge. On appeal to the supreme court, that judgment was reversed on July 31, 1933, by a majority. The petitioners then presented to the privy council their petition for special leave to appeal, the grant of which leave was on October 9, 1933, advised by this board, and on November 10, 1933, an order granting such leave was made by the king in council. But on November 15, 1933, an act was passed by the ... parliament of the Irish Free State, hereinafter called the oireachtas, providing that no appeal should lie to his majesty in council from any court in the Irish Free State. This enactment was also expressed to apply to appeals then pending. The petitioners thereupon brought this petition praying to have it declared that the enactment was void and did not bar their appeal....

For the decision of these questions it is necessary to consider the mode in which the constitution of the Irish Free State was established. On December 6, 1921, there were signed, in London, Articles of an Agreement for a Treaty between Great Britain and Ireland (this instrument will hereinafter be referred to as the Treaty). It was signed by representatives of Great Britain on the one hand and of the Irish Free State (or what became the Irish Free State) on the other. On March 31, 1922, an act of the imperial parliament was passed. It was entitled the Irish Free State (Agreement) Act, 1922,[14] and ... it provided that, as from the date of that act, the treaty which was scheduled to it should have the force of law. It also provided ... that there should be elected certain members of a body to be called the House of the Parliament, to which the provisional government should be responsible and which should have power, as respects matters within the jurisdiction of that government, to make laws in like manner as the parliament of the Irish Free State when constituted....

In due course the House of the Parliament, which was a single chamber body, was elected, and met on September 9, 1922. It proceeded to sit as a constituent assembly for the settlement of the constitution of the Irish Free State. The measure which it so passed was scheduled to an act of the imperial parliament entitled the Irish Free State Constitution Act, 1922, which received the royal assent on December 5, 1922; and which described the measure as the Constituent Act and by section 1 provided as follows: —

"The constitution set forth in the first schedule to the Constituent Act shall, subject to the provisions to which the same is by the Constituent Act so made subject as aforesaid, be the constitution of the Irish Free State, and shall come into operation on the same being proclaimed by his majesty in accordance with article 83 of the said constitution; but his majesty may at any time after the proclamation appoint a governor general for the Irish Free State."

The provisions to which the constitution was made subject by the Constituent Act were recited in the act.... Thus the treaty received the force of law, both in the united kingdom and in Ireland, by reason of the passing of an act of the imperial parliament; and the Constituent Act owed its validity to the same authority.... Of the articles of the constitution the following are so material in this matter that they should be set out here in full....[15]

On December 6, 1922, there was issued a proclamation of his majesty announcing the passing and adoption of the constitution, and thereafter the House of Parliament ... was in due course dissolved, and a parliament called the oireachtas for the Irish Free State was elected....

On December 11, 1931, the Statute of Westminster,[16] hereinafter called the Statute, was enacted. It was the result of the proceedings at the Imperial Conference, 1930, in which representatives of the Irish Free State took part together with the delegates of the other dominions.... Section I includes in the expression dominion (with the other dominions) the Irish Free State. Of the other sections, that which is most relevant in these proceedings is section 2, which is in the following terms: "The Colonial Laws Validity Act, 1865, shall not apply to any law made after the commencement of this act by the parliament of a dominion. No law and no provision of any law made after the commencement of this act by the parliament of a dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to the provisions of any existing or future act of parliament of the united kingdom, or to any order, rule, or regulation made under any such act, and the powers of the parliament of a dominion shall include the power to repeal or amend any such act, order, rule, or regulation in so far as the same is part of the law of the dominion." ...

On May 3, 1933, the oireachtas passed an act, no. 6 of 1933, entitled the Constitution (Removal of Oath) Act, 1933. That act ... provided ... that article 50 of the constitution should be amended by deleting the words "within the terms of the scheduled treaty." Finally, on November 15, 1933, the oireachtas, as already stated, enacted the Constitution (Amendment No. 22) Act, 1933, amending article 66 of the constitution so as to terminate the right of appeal to his majesty in council.

It is clear that, if this last-mentioned amending act is valid, the petition must fail, because the amendment of the constitution embodied in that act must bar the right of appeal to the king in council, if it is effective. But it cannot be effective unless the earlier act (no. 6 of 1933) is also valid; namely, that which is directed to removing from article 50 the condition that there can be no amendment of the constitution unless it is within the terms of the scheduled treaty....

In their [lordships'] opinion, the Constituent Act and the constitution of the Irish Free State derived their validity from the act of the imperial parliament, the Irish Free State Constitution Act, 1922. This act established that the constitution, subject to the provisions of the Constituent Act, should be the constitution of the Irish Free State and should come into operation upon being proclaimed by his majesty, as was done on December 6, 1922. The action of the House of Parliament was thereby ratified; apart from such ratification that body had no authority to make a constitution.... It has been pointed out in the foregoing statement that in the Statute the Irish Free State was treated as one of the dominions, the delegates of which took part in the Imperial Conference of 1930. The Irish Free State is, in their lordships' judgment, bound by the acts of the imperial parliament in the same way as any other of the dominions; if it were not for section 2 of the Statute, the oireachtas would have had no power to amend or repeal an act of the imperial parliament.... Hence the act no. 6 of 1933 and the amendment no. 22 of 1933 ... are valid acts of the oireachtas only in virtue of the Statute.... It follows that, by virtue of the Statute, article 66 of the constitution has been validly amended, with the result that the proviso to that article is removed and appeals to the king in council are now prohibited.

The position may be summed up as follows: — (1) The Treaty and Constituent Act respectively form parts of the statute law of the united kingdom, each of them being parts of an imperial act.

(2) Before the passing of the Statute of Westminster it was not competent for the Irish Free State parliament to pass an act abrogating the treaty because the Colonial Laws Validity Act forbade a dominion legislature to pass a law repugnant to an imperial act.

(3) The effect of the Statute of Westminster was to remove the fetter which lay upon the Irish Free State legislature by reason of the Colonial Laws Validity Act. That legislature can now pass acts repugnant to an imperial act. In this case they have done so.... In the result their lordships are of opinion that the petition should fail and be dismissed. They will humbly so advise his majesty.

Ibid., 1935, pp. 489-99.


[1] In 1880, on being elected to parliament and on coming before the speaker to be sworn in, Charles Bradlaugh sought to substitute an affirmation for an oath. This he held he might do by virtue of the Parliamentary Oaths Act of 1866, which allowed such substitution on the part of members already entitled to make affirmation in ordinary legal proceedings. The house, however, by majority vote denied him the privilege, on the ground that he had not been permitted to make affirmation in legal proceedings until after the year 1866. Then, when Bradlaugh offered to take the oath, the majority adjudged him incompetent to do so because he had abandoned that procedure in the courts. He vainly tried other means of inducing the house to admit him — including the administration of the oath to himself. Ultimately, he went to law, bringing suit against Gossett, serjeant-at-arms of the commons, to prevent the latter from enforcing the exclusion order. The following excerpt from the judgment of Justice Stephen in the queen's bench division shows why the court refused to interfere in the matter. Though frequently re-elected, Bradlaugh did not gain admission to the house until 1886, when a new speaker asserted the right of every member to take an oath when he chose to do so. In 1891 the commons unanimously voted to strike the earlier exclusion order from the journals of the house. Cf. no. 134B, C.

[2] The facts in this case are fully stated in the following judgment, given by Lord Russell of Killowen, Chief Justice, in the queen's bench division of the high court, to which Kruse, a holder of religious meetings, had appealed after conviction before the local magistrates.

[3] No. 135D.

[4] By this act the powers of municipal corporations, as reformed in 1835 (see no. 130F), were further defined, particularly in relation to the authority of the central government.

[5] A codification which displaced all earlier legislation concerning public health.

[6] Arlidge, the holder of a lease on a dwelling-house, brought suit against the local government board (established in 1871) for having, as he alleged, prohibited the use of his house for habitation without duly observing the provisions of the Housing and Town-Planning Act of 1909. Having lost the decision in the divisional court, he took the case to the court of appeal, where a majority of the judges rendered judgment in his favour, although a minority expressed decided views on the other side. Thereupon the local government board appealed to the house of lords. The unanimous opinion of that court, as delivered by Viscount Haldane, will appear from the accompanying extracts.

[7] Writs through which its decisions might be subjected to judicial review.

[8] This was an ex parte action, brought in the king's name on behalf of one Zadig, interned during the war with Germany. The facts in the case are all set forth in the judgment delivered in the house of lords by Lord Chancellor Finlay.

[9] No. 137C.

[10] This was another case brought on appeal to the house of lords. All the pertinent facts are presented in the opinion of Lord Moulton — a judgment in which the other lords concurred.

[11] No. 137C.

[12] No. 131B.

[13] The accompanying excerpts are from the judgment rendered by the judicial committee of the privy council, delivered by the lord chancellor, Viscount Sankey.

[14] No. 137 I.

[15] Article 12 creates a two-house legislature (oireachtas) with the "sole and exclusive power of making laws" for the Free State. Article 50 provides that the constitution may be amended "within the terms of the scheduled treaty" by an act of the oireachtas when ratified by popular referendum. Article 66 establishes a supreme court, the decision of which shall be "final and conclusive," but with the proviso "that nothing in this constitution shall impair the right of any person to petition his majesty for special leave to appeal from the supreme court to his majesty in council, or the right of his majesty to grant such leave."

[16] No. 137M.


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